STATUTES 


STATUTORY  CONSTRUCTION 


mcumnma 

\. 

A  DISCUSSION  OF  LEGISLATIVE  POWERS,  CONSTITUTIONAL 
REGULATIONS  RELATIVE  TO  THE  FORMS  OF  LEGIS- 
LATION AND  TO  LEGISLATIVE  PROCEDURE 


TOGETHER  WITH 


AjJ  ExPOSTTKm   AT  LE^SrGTH   OF   THE  PrTN^CIPLES   OF 
iNTBEPRETATIOir   AlH)    CoGNATE   TOPICS 


BY 

J.  G.  SUTHERLAND 

Author  of  "A  Treatise  on  the  Law  of  Damages* 


CHICAGO 

CALLAGHAN   AjSTD    COMl^AKY 

1891 


109/ 

COFYiaGHT,   1891, 
BY 

CALLAGHAN  AND  COMPANY, 


STATE  JOURNAL  PRINTING  COM»AKY, 
Printers  and  STEBEonrPEKS, 

MADISON,  WIS. 


PREFACE. 


Ko  apology  to  the  profession  is  necessary  from  the  author 
for  offering  a  new  book  on  Statutory  Construction,  although 
it  is  a  subject  which  his  predecessors  in  the  same  work  have 
treated  in  a  masterly  manner.  It  is  a  field  in  no  danger  of 
being  over-cultivated. 

The  law  for  the  construction  of  written  contracts  and  other 
private  documents  is  as  certain  and  well  defined  as  upon  any 
other  branch  of  legal  science.  This  is  not  equally  true  of  the 
law  for  the  construction  of  Written  Laws.  They  deal  with 
subjects  of  greater  complexity;  they  are  the  product  of  so 
many  minds,  not  having  common  views,  that  incongruities 
cannot  be  whoUy  excluded,  and  threads  of  diverse  ideas  are 
often  interwoven;  and,  moreover,  opposing  considerations  of 
broader  range  press  for  recognition  in  their  construction.  In 
many  ways  converse  rules  overlap,  and  the  lines  of  distinction 
are  faint  and  shifting. 

The  natural  tendency  and  growth  of  the  law  is  towards 
system  and  towards  certainty,  towards  modes  of  operation 
at  once  practical  and  just,  by  the  process  of  its  intelligent 
judicial  administration;  but  this  process  is  impair-^d  by  over- 
work and  legislative  interference. 

AVhen  it  is  considered  how  many  legislative  bodies  there  are, 
and  how  many  independent  courts  administer  their  laws,  the 
diversities  of  construction  which  have  occurred  are  not  sur- 
prising; these  divergencies  lead  to  permanent  contrarieties 
bounded  by  state  lines.  Under  such  circumstances  it  is  im- 
portant that  cognate  cases  be  often  collated  and  their  princi- 


iv  PREFACE. 

pies  generalized,  with  a  view  to  maintaining  the  domain  of  the 
law  as  a  science  by  remarking  the  true  lines. 

The  frequent  assertion  of  sound  doctrine  with  copious  illus- 
trations is  promotive  of  harmony.  The  author  has  embodied 
in  this  work  the  result  of  thorough  reading  of  the  cases,  and 
a  thoughtful  and  earnest  endeavor  to  extract  and  put  in  ele- 
mentary form  their  best  teaching.  And  he  submits  it  in  the 
modest  hope  that  his  fellow-practitioners  and  the  courts  may 

find  it  useful  and  contributory  to  that  end. 

J.  G.  S. 
Salt  Lake  City, 
December,  1890. 


TABLE  OF  CONTENTS. 


PAET  FIEST. 
The  Enactment,  Dueation  and  Pkoof  of  Statutoet  Laws. 

CHAPTER  L 

THE  LEGISLATIVE  POWER  AS  DISTINGUISHED  FROM  OTHER  SOVEREIGN  POW- 
ERS, AND  THE  GENERAL  NATURE  OF  STATUTORY  LAW. 

Sec. 
Order  of  subjects 1 

The  legislative  a  distinct  power 2 

The  nature  of  legislative  power 6 

Statutory  laws,  in  general 7 

Rules  of  action 9 

Legislative  rules  of  action  —  Essential  limitations         .         .         .         .10 

Statutes  have  no  extraterritorial  effect 12 

Extraterritorial  operation  of  laws  in  colonization  of  a  new  country  .  14 
English  statutes  passed  after  the  establishment  of  the  colonies  .  .  17 
Continuance  of  laws  on  change  of  sovereignty     .         .         .         •         .19 

Laws  of  states  in  rebellion    . 20 

Federal  and  state  statutes 21 

Territorial  statutes 23 

CHAPTER  11 

THE  LEGISLATURE,  AND  THE  ESSENTIAL  PARLIAMENTARY  PROCEDURE. 

The  legislature 26 

Common-law  record  of  legislation  conclusive 27 

Our  legislative  record 28 

Effect  of  constitutional  regulations  of  legislative  procedure  ...  30 

States  lioldiug  sfcitutes  conclusive  in  Missoiu-i  and  Mississippi      .         .  33 

Same  in  Louisiana,  etc.         .........  35 

Evidence  of  statutes  in  New  York ;   Indiana 3t» 

Constitutional  regulations  of  procediu-e,  where  mandatory  .         .         .41 

Legislative  journals  and  fdes  are  evidence    ......  4)i 

Presumption  in  favor  of  vahdity  of  statutes 4G 

Required  reading  of  bills 4 

Necessity  of  signatures  of  presiding  oflScers 51 

How  vahdity  of  statutes  tiied 52 

When  acts  should  be  approved 52 


VI 


TABLE    OF    CO:^TTENTS. 


CHAPTER  III. 

FORMS  OF  LEGISLATION  —  REFEKEXCE  TO    THE   ENACTING   POWER,  AND   THE 
DELEGATION  OF  IT. 

Forms  of  legislation     ....... 

Constitutional  regulations  of,  directory  in  certain  states 

Mandatory  in  others 

As  to  enacting  style      ...... 

Legislative  power  cannot  be  delegated  .         . 

"NMiat  is  a  delegation  of  legislative  j)ower 
Exceptions  which  have  been  established 
Effect  of  submitting  laws,  etc.,  to  popular  vote     . 
Local  laws  may  be  submitted       .... 


Sec. 
60 
62 
64 
65 
67 
69 
70 
71 
75 


CHAPTER  IV. 


CONSTITUTIONAL    REQUIREMENT    THAT    NO  ACT    EMBRACE    MORE    THAN    ONE 
SUBJECT  AND  THAT  IT  BE    EXPRESSED  IN   THE   TITLE. 

Substantial  agreement  of  constitutional  provisions        ....  76 

Regarded  as  mandatory        .........  79 

Liberally  construed  to  sustain  legislation 82 

Provisions  must  be  germane         ........  85 

Requirement  to  state  subject  in  title     .......  86 

Provisions  can  have  no  greater  scope  than  subject  in  the  bill        ,         .  87 

Title  need  not  index  details  of  act 88 

"  Etc."  may  increase  scope  of  title 89 

Title  too  general 90 

Title  should  accompany  bill  in  process  of  passage          ....  91 

"Wliat  general  title  includes  .........  93 

Acts  which  relate  to  plurality  of  similar  subjects          ....  98 

Title  and  subject  of  amendatory  and  supplementary  acts      .         .         .  101 

Provisions  not  within  subject  in  the  title       ......  102 

Effect  of  act  containing  more  than  one  subject    .....  103 

CHAPTER  V. 

TIME    OF  TAKING  EFFECT. 

AVhen  silent  as  to  commencement 104 

Acts  of  parliament  formerly  took  effect  from  first  day  of  session  .     105 

Actual  date  of  passage  adopted  in  this  covmtry 106 

Legislature  may  fix  the  time  for  act  to  take  effect        ....     107 

Constitutional  regulations 108,  109 

Precise  time  of  taking  immediate  effect 110 

Computation  of  time  when  to  take  effect  in  specific  number  of  days    111-115 

CHAPTER  VI. 

REQUIREMENT   OF  GENERAL  LAWS   AND  THAT  THEY  BE  OF  UNIFORM  OPERA- 
TION. 

Constitutional  requirements  . 116 

They  are  mandatory 117 

General  laws,  or  laws  of  general  nature 120-123 

Required  uniform  operation  . 124-126 

Special  and  local  laws 127-129 

Aiiieudatory  and  curative  acts  may  not  interrupt  uniform  operation  .     130 


TABLE    OF    CONTENTS.  Vll' 

CHAPTER  VIL 

AMENDATORY  ACTS. 

Sec. 

Constitutional  requirement  and  its  purpose 131 

Acts  expressly  amendatory  . .132 

Amendment  " to  read  as  follows" 133 

Repeal  and  re-enactment      .         .         , 134 

Amendments  by  implication  not  within  constitutional  regulation        .     135 

CHAPTER  VIIL 

EEPEALING  ACTS. 

Duration  of  statutes  and  power  of  repeal 13G 

Express  and  implied  repeal  .         .         .         .         .         .         ,        ,         .137 

Repeals  by  implication  not  favored       . 13& 

Implication  from  negative  or  affirmative  statutes  ....  139^ 
Repealing  effect  of  affirmative  statutes  conferring  power  .  .  .  140 
Where  there  is  grant  of  part  of  power  already  possessed      .         .         .141 

Repealing  effect  of  acts  changing  criminal  laws 142 

Grant  of  greater  or  different  power  or  right 145 

Repeal  by  radical  change  of  leading  part 14G 

Repeal  of  inconsistent  legislation 147 

Reconcilement  of  affh'mative  statutes 14S 

Repeal  by  revision        .         .         . 154 

General  laws  will  not  repeal  those  which  are  special    .        .        ,        .157 

The  later  law  which  causes  repeal 160 

Effect  of  repeal  as  to  civU  rights 163 

Effect  of  repealing  penal  laws 166 

Saving  clauses      ...........     167 

Revival  by  repeal  of  repealing  statute 168 

CHAPTER  IX 

STATUTES  VOID  IN  PART. 


Statutes  may  be  void  in  part  and  vaUd  in  part     .         .         . 
Requisite  separableness  of  void  pai't     ..... 
Slain  piu-pose  being  imconstitutional,  whole  act  void    . 
Where  void  part  inducement  to  residue        .... 
Valid  part  must  be  complete  and  accord  with  legislative  intent 

CHAPTER  X. 


169 
171 
174 
176 
178 


JUDICIAL    NOTICE    AND    PROOF    OF    STATUTES,    AND    THEIR    AUTHORITATIVE 

EXPOSITION. 

Judicial  notice  of  statuK*! 181 

State  statutes  in  federtil  courts 185 

Foreign  statutes,  how  proved 188 

Functions  of  coiu-t  and  jury  in  respect  of  foreign  laws  proved     .         .192 
Private  statutes 193 


vm 


TABLE    OF   CONTENTS. 


PART  SECOND. 
Statutory  Constkuctioa, 


CHAPTER  XL 

CLASSIFICATION  AND  DESCRIPTION  OF  STATUTES. 


The  names  applied  to  statutes 
Ancient  statutes  of  England         .       ' . 
Federal,  state,  territorial  and  colonial  statutes 
PubUc  and  private  statutes  .... 

Declaratory  statutes 

Aflh-uiative  and  negative  statutes 
Pi-eceptive,  proliibitive  and  permissive  statutes 
Prospective  and  reti'oactive  statutes     . 

Eemedial  statutes 

Penal  statutes 


Sec. 
195 
196 
197 
198 
200 
203 
205 
206 
207 
208 


CHAPTER  XIL 

PARTS  OF  A  STATUTE  AND  THEIR  RELATIONS. 

The  title 210 

The  preamble 212 

The  enacting  style 214 

Tlie  purview  ......•••••  215 

Exceptions,  provisos,  interpretation,  repealing  and  saving  clauses         .  216 

Pai-tial  conflict  resolved  into  an  exception 217 

Words  expounded  to  accord  vrith  intent 218 

Effect  of  total  conflict 220 

Punctuation 232 

Headings  and  marginal  notes       .        .        .        •        •        ••        •  234 


CHAPTER  XHL 

INTERPRETATION  AND  CONSTRUCTION. 

The  intent  of  a  statute  is  the  lavs^ 234 

Its  ascertainment  the  object  of  intei-pretation 235 

236 
237 

238 
239 
240 

245 
246 
247 
248 


Interpretation  and  construction  compared    .         .         .        .  '      . 
Intent  first  to  be  sought  in  language  of  statute  itself     .... 
If  intent  plainly  expressed  it  is  to  be  followed  without  further  inquiry 
The  intention  to  be  ascertained  from  entu-e  statute       .... 
General  intent  of  statute  key  to  meaning  of  the  parts 
The  flexibility  of  words  and  claiises  to  harmonize  with  the  general  in- 


tent 


Literal  sense  of  words  not  controlling  .         .         .         . 

Interpretation  of  words  and  phrases 

They  should  be  construed  as  they  are  generally  understood 


TABLE   OF   CONTENTS. 


IX 


How  general  words  construed 

Words  having  popular  and  technical  meaning 

Conimon-law  words      .... 

Statutory  uses  of  words 

Change  of  phraseology  of  statute 

Statutes  adopted  by  general  reference  . 

Interpretation  with  reference  to  grammatical  sense 

■Correction  of  mistakes 

Context  and  associated  words 

Relative  and  qualifying  words      . 

•General  words  following  particular      . 

Reddendo  singula  singulis    . 

Interpretation  affected  by  other  statutes 

Construction  of  statutes  in  pari  materia 

Interpretation  with  reference  to  conunon  law 

Extraneous  aids  to  construction    . 

Judicial  knowledge       .... 

Contemporaneous  construction     . 

General  usage 

Stare  decisis 

Effects  and  consequences     . 
Expressio  unius  est  exclusio  alterixts    . 
Presumptions        ..... 
Implications  and  incidents  . 

CHAPTER  XIV. 

STRICT  CONSTRUCTION, 

Literal  and  strict  construction  compared 

Strict  construction  of  penal  statutes     . 

Kot  construed  so  strictly  as  to  defeat  intention 

What  statutes  are  penal 

Revenue  laws       .         .         .         •         • 

Statutes  which  impose  burden  of  taxation 

Statutes  delegating  the  taxing  power    . 

Statutes  against  common  right     . 

Statutes  of  limitations 

Limitations  as  to  new  trials  and  appeals 

Statutes  interfermg  with  legitimate  industries,  etc, 

Statutes  creatmg  habihty  for  death  by  negUgence 

■Civil  damage  acts         .... 

Grants  of  titles  and  franchises     . 

Statutes  for  exercise  of  eminent  domain 

Statutes  granting  power 

Jurisdiction  of  courts  .... 

Statutory  rights 

Statutes  in  derogation  of  the  common  law 

Interpretation  clauses  .... 

Statutes  affecting  statutory  policy 


See. 
249 

250 

253 

255 

256 

257 

258 

2C0 

2G2 

2G7 

26S 

282 

283 

280 

289 

292 

290 

307 

308 

313 

321 

325 

330 

33-t 


346 
349 
356 

358 
361 
362 
365 
3G0 
368 
369 
3TU 
371 
373 
378 
387 
390 
395 
398 

4oa 

402 
407 


X  TABLE    OF   CONTENTS. 

CHAPTER  XV. 

LIBERAL  CONSTRUCTION. 

See; 

General  explanation  of  subject 404 

Remedial  statutes  in  sense  of  rule  that  they  are  liberally  construed   409-412 

Equitable  cousti-uction 413- 

Liberal  construction     .         . 416 

Casus  omissus 431 

CHAPTER  XVL 

DIRECTORY  AND  MANDATORY  STATUTES. 

Preliminary  explanation 44& 

ProTisions  as  to  time  generally  directory 448 

Also  formal  and  incidental  provisions 451 

Statutory  bonds  differing  from  statute 453' 

]Mandatoiy  statutes 454 

Statutes  which  confer  new  rights,  privileges,  etc.  .....  458 

Statutes  which  are  in  form  permissive .460 

CHAPTER  XVIL 

RETROACTIVE  STATUTES. 

Generally  regarded  with  disfavor 463' 

Ex  post  facto  laws 465 

Reti'ospective  laws  relating  to  criminal  procedure        ....  467 

Change  of  punishment  by  subsequent  legislation        ....  470 

Laws  impairing  obhgation  of  contracts 471 

Change  of  remedy 476 

Vested  rights  inviolable 480 

Curative  statutes 483 


TABLE  OF  CASES  CITED. 


Aaron  v.  State,  40  Ala.  307.    §§  16G, 

167,  227. 
Abbott  V.  Middleton,  7  H.  of  L.  68. 
§§  236, 247. 
V.  Wood,  22  Me.  541.    §  360. 
Abbottsford,  The,  98  U.  S.  440.  §§255, 

333. 
Abel  V.  Douglass,  4  Denio,  305.   §  184. 

T.  Lee,  L.  R  6  C.  P.  371.    §  258. 
Aberdare  Local  Board  v.  Hanxtnett, 

L.  R  10  Q.  B.  162.  §  429. 
Abernathy  v.  State,  78  Ala.  411.  §  138. 
Abington  v.  Cabeen,  106  111.  200. 
§§  93,  96. 
V.  Duxbury,  105  Mass.  287.  §  206. 
Ableman  v.  Booth,  21  How.  506.  §  21. 
Abley  v.  Dale,  11   C.  B.  878.    §§  237, 

238. 
Acker  v.  Acker,  81  N.  Y.  143.    §  146. 
Ackley  School  Dist.  v.  Hall,  103  U.  S. 

135.     §§  93,  95. 
Adams    v.    Abram,    38    IMicli.    302. 
§371. 

V.  Field,  21  Vt.  266.     §  333. 

V.  Foster,  20  Jolin.  452.     §  339. 

V.  Lockwood,  30  Kan.  773.  §  393. 

V.  Nashville,  95  U.  S.  19.     §  185. 

V.  Oaks,  20  John.  282.    §  339. 

V.  Saratoga,  etc.   R    R    Co.   10 
N.  Y.  328.    §  387. 

V.  Tm-rentine,     8    Ired.    L.    147. 
§§  247,  253,  291. 

V.  Tyler,  121  Mass.  380.    §  428. 

V.  Webster,    26    La,    ^\jin.    142. 
§§  93,  103. 
Adams  Exp.   Co.   v.  Owcnsboro,  85 

Ky.  265.     §  157. 
Adam  son  v.  Davis,  47  Mo.  268.     §  10. 
Adj. -Gen.  v.  Ranee  Sm-nomoye  Dos- 

see,  9  Moore's  Ind.  App.  387.  §  15. 


Aechtcrnacht  v.  Watmouth,  8  Watts 

&  S.  162.     §  358. 
Aerated  Bread  Co.  v.  Gregg,  L.  R  8 

Q.  B.  355.     §§  247,  254, 
^tna  Ins.   Co.  v.  Harvey,  11  Wis. 

394.     §  336. 
Ahl  v.  Rhoads,  84  Pa.  St  319.     §  206. 
Aicard    v.   Daly,    7    La.    Ann.    612. 

§314. 
Aikin  v.  Western  R  R.  Co.  20  X.  Y. 

370.    §229. 
Alabama  Ins.  Co.  v.  Boykin,  38  Ala. 

510.     §  483. 
Alabama  Med.  College  v.  Muddon,  46 

Ala.  603.     §  162. 
Alberson  v.  Mayor,  82  Ga.  30.     §  101. 
Albei-tson  v.  Robeson,  1  DalL  9.    §  104. 

V.  State,  9  Neb.  422.  §§  160,  220. 
Albon  v.  Pyke,  4  M.  &  Gr.  424  §  396. 
Albright  v.  Lapp,  26  Pa,  St,  99,    §  342. 

V,  Payne,  43  Ohio  St  8,  §  232. 
Alcorn  v.  Hamer,  38  Miss,  652.    §§  67, 

72,  75. 
Alderman  v.  Phelps,  15  ^lass.    225. 

§115. 
Aldrich  v.  Parnell,   147    Mass.  409. 

§377, 
Aldridge  v,   Mardoff,   32    Tex,    204. 
§  240, 

v,  Tuscumbia,   etc,   R  R  Co,  2 
St  &  P,  199.     §  480. 

V.  Williams,  3  How.  9.     §  300. 
Alexander  v.  Bennett,  60  N.  Y.  204. 
§385. 

V.  Buruham,  18  Wis.  199.     §  298. 

v.  State,  56  Ga,  478.     §  333. 

V.  State,  9  Ind.  337.     §  133. 

V.  Saiilsbury,  37  Ala,  375.     §  400. 

V.     Worthington,    5    Md.    471. 
§§  215,  236,  237. 


xu 


CASES    CITED. 


Alina,  The,  5  Ex.  Div.  227 ;  5  Prob. 

DiT.  138.     §  268. 
Alkins  V.  Jupe,  2  C.  P.  Div.  375.   §  210. 
Allaire  v.  Howell  Works  Co.  14  N.  J. 

L.  21.     §  358. 
Allegheny  Co.  Home's  Case,  77  Pa. 

St  77.     §§103,170. 
Allen's  Appeal,  81*  Pa.  St.  302.  §  272. 
Allen's  Appeal,  99  Pa.  St.  196.    §§  247, 

253,  291. 
Allen  V.  Hall,  14  Bush,  85.     §  100. 
T.  Hirsch,  8  Ore.  412.     §  193. 
T.  Louisiana,  103  U.  S.  80.    §§  169, 

174. 
V.  Manasse,  4  Ala.  454.     §  422. 
V.  Massey,  17  WaU.  354.     §  185. 
V.  Parish,  3  Ohio,  198.     §  246. 
V.  Pioneer  Press,    40  Minn.  117. 

§§  122,  128. 
V.  Ramsey,  1   Mete.    (Ky.)    635. 

§256. 
V,  Rovmdti-ee,  1  Spears,  80.  §  424. 
v.  Russell,  39  Oliio  St.  336.    §  232. 
V.  Savannah,  9  Ga.  286.     §  322. 
V.  Scharinghausen,  8    Mo.  App. 

229.     g  306. 
V.  Stevens,  29  N.  J.  L.  509.   §  358. 
V.  Tison,  50  Ga.  374.    §§  93,  96, 98. 
V.  Young,  76  Me.  80.     §  243. 
V.Watson,   2    Hill  (S.    C),   319. 
§§  184,  190. 
AUen,  BaU  &  Co.  v.  Mayor,  9  Ga.  286. 

§257. 
Allentown  v.  Hower,  93  Pa.  St.  332. 

§198. 
Alley  in  Kritztown,  In  re,  2  Woodw. 

Dec.  (Pa.)  373.    §204. 
Allliusen  v.  Brooking,  L.  R.  26  Ch. 

Div.  564    §§  463,  484. 
Allman  v.  Owen,  31  Ala.  167.     §  302. 
Allor    V.   Wayne    Co.    Auditors,    43 

Mich.  76.    §§  92,  211. 
Allsop  V.  Day,  7  H.  &  N.  463.     §  402. 
Alma  Spinning  Co.,  In  re,  L.  R.  16 

Ch.  Div.  687.     §§  322,  324. 
Almy  v.  Harris,  5  John.  175,    §§  202, 

204,  325,  399. 
Alsbath  V.  PhU  brick,  50  N.  J.  L.  581. 
§128. 


Alter  V.  Shepherd,  27  La,  Arm.  207. 

§§  363,  420. 
Altrincham  Union  v.  Cheshire  Lines 
Committee,  L.  R.  15  Q.  B.  Div. 
597.    §199. 
Alvord  V.  Lent,  23  Mich.  372.    §§  238, 
372. 
V.  Little,  16  Fla.  158.    §  10. 
American  Fiu*  Co.  v.  United  States, 

2  Pet.  367.    §  349. 
American  Ins.  Co.  v.  Canter,  1  Pet. 

541.     §§  19,  24,  25,  184. 
American  Printing  House  v.  Dupuy, 

37  La.  Ann.  188.     §  88. 
American  Print  Works  v.  Lawrence, 

23  N.  J.  L.  590.    §§  169,  191. 
American     Ti-ansportation     Co.     v. 

Moore,  5  Mich.  368.     §  271. 

Ames    V.   McCamber,   124  Mass.  85. 

§192. 

V.  Martin,  6  Wis.  361.    §  420. 

Anisbry  v.  Hinds,  48  N.  Y.  57.    §  206. 

Amy  V.  Watertown,   130  U.  S.  301. 

§187. 
Anderson  v.  Anderson,  23  Tex.  639. 
§297. 
V.  Commonwealth,  18  Gratt.  295. 

§135. 
V.  Dunn,  6  Wlieat.  204.    §  8. 
V.  Foiger,  11  La.  Ann.  269.   §  297. 
V.  Herriott,  4  Cow.  508.     §  12. 
V.  HiU,  42  N.  J.  L.  351.    §  157. 
V.  Hill,  54  Mich.  477.     §  90. 
V.  Levely,  58  Md.  192.    §§68,  342. 
V.  Trenton,  42  N.  J.  L.  486.   §  128. 
Andi-ews  v.  Hoxie,  5  Tex.  117.  §§  184, 
192. 
V.  King,  77  Me.  224.     §  333. 
V.  Knox  Co.  70  lU.  65.    §  298. 
V.  People,  75  lU.  605.    §  154. 
V.  RusseU,  7  Blackf.  474.    §  164. 
V.  Schott,  10  Pa.  St.  47.     §  364. 
V.  Shaffer,  12  How.  Pr.  441.  §  338. 
V.  United  States,    2  Story,   202. 
§§  208,  347,  350. 
Angela  de  Sentamanat  v.  Soule,  33 

La.  Ann.  609.     §§  260,  261. 
Anglo-Greek  Steam  Co.,  In  re,  L.  R 
2  Eq.  1.     §  208. 


CASES   CITED. 


XIU 


Anna,  The,  L.  R.  1  P.  Div.  259.    §§  309, 

310. 
Annable  v.  Patch,  3  Pick.  360.    g  206. 
Annan  v.  Houck,  4  CJUl,  332.     5^  414. 
Anness  v.  Providence,   13  11.   L   17. 

§392. 
Anonymous,  2  Stew.  228.    §  483. 
Anonymous,  1  Strange,  86.     §  115. 
Anonymous,  3  Hill,  375.     §  115. 
Ansley  v.  Meikle,  81  Ind.  260.     §  190. 
Antelope,  The,  10  Wheat.  66.     §  13. 
Anthony  v.  State,  29  Ala.  27.    §  256. 
Appeal  Tax  Court  v.  Western,  etc. 
R.  R.  Co.  50  Md.  274    §§  138,  463, 
480. 
Apple  V.  Apple,  1  Head,  348.    §§  247, 

253,  291. 
Archbishop  Canterbury's  Case,  2  Rep. 

46a.     g  277. 
Arding  v.  Bonner,  3  Jur.  (N.  S.)  763. 

§300. 
Argeuti  v.  San  Francisco,  16  Cal.  282. 

g380. 
ArgueUo  v.  United  States,  18  How. 

550.     §  181. 
Aritt  V.  Elmore,  3  Bailey,  595.     §  425. 
Armstrong  v.  Berreman,  13  lud.  423. 
§132. 
V.  Ross,  20  N.  J.  Eq.  109.     §  458. 
V.  Toler,  11  Wlieat  358.     §  336. 
V.  United  States,  1  Pet.  C.  C.  46. 
§  453. 
Arnold    v.    KeUey,    5    W.  Va.   446. 
§§  10,  119. 
V.   United  States,  9  Cranch,  104 
§g  110,  113. 
Amoult  V.  New  Orleans,  11  La.  Ann. 

54    §  133. 
Arthur  v.  Adam,  49  Miss.  404.    §  451. 
V.  Bokeuham,  11  Mod.  150.    §  291. 
V.  Dodge,  101  U.  S.  34.     §  156. 
V.  Homer,  96  U.  S.  137.     §  138. 
V.  Morrison,  96  U.  S.  108.     §§  238, 
254 
Arundel  v.  McCulloch,  10  INIass.  70. 

§g  386,  388. 
Ashbury  Co.  v.  Riche,  L.  R.  7  H.  of  L. 

653.     §  269. 
Ashford  v.  Walkins,  70  Ala.  156.  §  194. 


AslUey,  Appellant,  4  Pick.  21.    §§  154 

201,  329. 
Asliley  V.  Harrington,  1  D.  Chip.  348. 
§133. 
V.  Martin,  50  Ala.  537.    §  298. 
Asmale    v.    Goodwin.    2    Salk.   624 

§  115. 
Aspinwall  v.  Daviess  Co.  22  How.  364. 

§164 
AspUn  V.  Blackman,  7  Ex.  386.  §462. 
Assessor  v.   Osboi-nes,   9  Wall  567. 

§§  165,  464 
Atcheson    v.   Everitt,   1   Cowp.  391. 

§§  410,  416,  430. 
Atkins  v.  Disintegratmg  Co.  18  Wall. 
272.     §§  215,  234  246. 
V.  Kinnan,  20  Wend  249.  §§  390, 
454 
Atkinson  v.   Atkinson,  15  La.  Ann. 
491.    §184 
V.  Duffy,  16  Minn.  49.    §§  82,  88, 

92,  93. 
V.  Dunlap,    50  Me.    111.    §§  10, 

206. 
V.  Rhea,  7  Humph- 59.    §447. 
Atlantic  City    Water-works  Co.    v. 
Consumers'  Water  Co.  44  N.  J. 
Eq.  427.     §  128. 
Attorney-General  v,  Amos,  60  Mich. 
372.    §  94 
v.  Baker,  9  Rich.  Eq.  521.     §  447. 
V.  Bank,  5  Ired.  Eq.  71.    §§  308, 

310. 
V.  Brown,  1  Wis.  513.    §§  136, 202. 
V.  Brunst,  3  Wis.  787.    §  356. 
V.     Chelsea    Water-works    Co., 
Fitzgib-195.    §§  160,  331,  328. 
V.  Day.  1  Ves.  Sr.  331.     §  427. 
V.  Detroit,  etc.  Co.  3  Mich.  138. 

§§  239,  340. 
V.  Donaldson,  10  31.  &  W.  117. 

§333. 
V.  Edison  Telephone  Co.  of  Lon- 
don, L.  R.  6  Q.  B.  Div.  244. 
§383. 
V.  Erie,  etc.  R  R  Co.  55  3Iich.  21. 

§  193. 
V.  Foi-ster,  10  Ves.  338.     §  312. 
V.  Joy,  55  Mich.  94.     §§  40,  41,  92. 


XIV 


CASES   CITED. 


AtU>ruey-Geueral  v.  Knock- A-SiBg, 

L.  R.  5  P.  C.  179.     §§218,246. 

V.  Lamplough,  L.  R.  3  Ex.  Div. 

223.     glG2. 
T.  Lockwood,   9  M.    &  W.   391. 

g§  143,  246,  258. 
V.  Middleton,    3    H.   &    N.    138. 

§  362. 
V.  Powis,  Kay,  186.     §  247. 
V.  Preston,  56  Mich.  181.     §  311. 
V.  Primate,  1  Jebb  &  Symes,  317. 

§307. 
V.  Rice,  64  Mich.  385.     §  91. 
V.  Sillem,  2  H.  &  C.  508.    §§  237, 

238,  239,  300. 
V.  Smith,  31  Mcli.  359.     §§  321, 

407. 
V.  Stewart,  2  Meriv.  162.     §  184. 
T.  Weymouth,  1  Amb.  22.  §§  196, 
210. 
Atwater    v.    Schenck,    8    Wis.    160. 

§298. 
AtweU  V.  Grant,  11  Md.  104.    §§  164, 

483. 

Aubert  v.  Maze,  2  B.  &  P.  371.   §  336. 

Auditor  V.  Atcliison,  etc.  R.  R.  Co.  6 

Kans.  500.    §§  3,  10,  68. 

V.  Haycraft,  14  Bush,  284.    §  300. 

Augusta   V.    Sweeney,    44    Ga  463. 

§473. 
Aui'ora,   Cargo    of   Brig,  v.  United 

States,  7  Cr.  382.     §§  168,  182. 
Aurora,  etc.  Turnpike  v.  Holthouse,  7 

Ind.  59.    §  206. 
Ausman  v.  Veal,  10  Ind.  355.    §  305. 
Austin    V.  Bunyard,  6  B.  &  S.  687. 
§324. 
V.  Carter,    1  Mass.  230.    §§  386, 

388. 
V.  Gulf,  etc.  R.  R.  Co.  45  Tex.  234 

§287. 
V.  Murray,  16  Pick.  121.     §  370. 
V.  State,  71  Ga.  595.     §  347. 
V.  Stevens,  24  Mo.  520.    §  206. 
V.  The  Aldermen,   7  Wall.    694. 
§171. 
Avanzo  v.  Mudie,  10  Ex.  203.     §  458. 
Averill  v.  Perrott,  74  Mich.  296;  41 
N.  W.  Rep.  929.    §  397. 


Avery    v.    Groton,    36    Conn.    304u 
§§  387,  416. 

V.  Pixley,  4  Mass.  460.    §§  251^ 
253. 

V.  Stewart,  2  Conn.  69.     §  115. 
Aycock  V.  Martm,  37  Ga.  124.     §  478, 
Ayeridge  v.  Town  Commissionere,  60' 

Ga.  405.     §g  94,  102. 
Ayers  v.  Knox,  7  Mass.  306.    §§  218,- 

223,  246,  428. 
Ayres  v.  Methodist  Church,    etc.  3- 

Sandf.  368.    §  184. 

Babcock   v.   Goodrich,  47    CaL  48a 
§336. 

V.  New  J.  Stockyard  Co.  20  N.  J. 
Eq.  296.     §  381. 
Bach  V.   Smith,  3   Wash.   T'y,   145. 

§336. 
Bacliman  v.  Chrisman,  23  Pa,  St  162. 

§206. 
Backes  v.  Dant,  55  Ind.  181.     §§  164,^ 

376. 
Backus  V.  Lebanon,  11  N.  H.  19.  g  473, 
BackweU's  Case,  1  Vem.  152.     §  460. 
Bacon    v.   Kennedy,   56    Mich.    329, 

§§  113,  114. 
Bagg's  Appeal,  43  Pa,  St.  512.    §§  10, 

484. 
Bagley    v,   Emberson,    79    Mo.    139. 

§458. 
BaUey  \.  Bailey,  21  Gratt.  43.    §  482. 

V.  Bailey,  L.  R.  13  Q.  B.  Div.  859. 
§204. 

V.  Bryan,  3  Jones'  L.  (N.  C.)  357. 
§§  139,  207,  290,  325,  392,  393. 

V.  Commonwealth,  11  Bush,  688; 
§§  218,  240,  251,  331. 

V.  Harris,  12  Q.  B.  905.     §  336. 

V.  Kalamazoo  Pub.  Co.  40  Mcli. 
251.     §  304. 

V.  McDoweU,  2  Harr.  34.     §  190. 

V.  Maguire,  22  WalL  226.    §  364. 

V.  Mason,  4  Mmn.  546.     §  163. 

V.  R.  R.  Co.  4  Harr.  389.     §  482. 

V.  Rolfe,  16  N.  H.  247.    §§  308, 
310,  312. 
Bailie's    Case,    1    Leach's    Cas.  396» 

§210. 


CASES   CITED. 


XV 


Baines  v.  Williams,  3  Ired.  L.  481. 

§368. 
Baii'd  V.  Bank  of  Washington,  11  Serg. 

&  R  418.     §  385. 
Baker,  In  re,  2  H.  &  N.  219.    §  143. 
Baker  v.  Baker,  13  CaL  87.    §§  200, 
291. 
V.  Compton,  52  Tex.  252.     §  104. 
V.  Lorillard,  4  N.  Y.  261.     §  314. 
V.  Taylor,  2  Blatck  82.     §  458. 
V.  TerreU,  8  Minn.  195.     §  400. 
V.  Wright,  1  Bush,  500.     §  20. 
Baklro  v.  Tolmie,  1  Ore.  176.    §  426. 
Baldwin  v.   Franks,  120  U.  S.   678. 
§173. 
V.  Newark,    38    N.    J.    K    158. 
§206. 
Balfour  v.  Malcohii,  8  CL  &  Fin.  500. 

§396. 
Ball  V.  Bullard,  52  Barb.  141.    §  146. 
V.  Lastinger,  71  Ga.  678.    §§  392, 
393. 
Ballard    v.   Ward,    89    Pa.   St.    358. 

§  206. 
BaUin  v.  Ferst,  55  Ga,  546.     §  167. 
Ballon  V.  Black,  17  Neb.  389.    §  54 
Ballston  Spa  Bank  v.  Marine  Bank, 

16  Wis.  120.    §  139. 
Baltimore,  etc.  R.  R.  Co.  v.  Glenn,  28 
Md  287.     §§  190,  192. 
V.  Grant,  98  U.   S.   398.     §§  165, 

464 
V.  Haiver,  12  Am.  &  Eng.  R  R. 

Gas.  149.    §371. 
V.  KeUy,  24  Md.  271.    §  371. 
V.  Trainor,  33  Md.  542.    §  371. 
V.  Wilson,  2  W.  Va.  528.     §  341. 
Baltimore,  etc.  Turnpike  Co.  v.  Union 

R  R  Co.  35  Md.  224     §  388. 
Bancroft  v.  Dumas,  21  Vt  456.  §  336. 
Bane  v.  Wick,  6  Oliio  St  13.    §§  315, 

320. 
Bangs  V.  Snow,  1  Mass.  181.    §  380. 
Bank  v.  Dalton,  9  How.  522.    §  427. 

V.  Ibbotson,  5  Hill,  461.     §  207. 
Bank  for  Savings  v.  Tlie  Collector,  3 

Wall  495.     §§  162,  222. 
Bank  of  Alexandria  v.  Dyer,  14  Pet. 
141.     §  424. 


Bank  of  Augusta  v.  Earle,  13  Pet. 

519.     §§  12,  13,  385. 
Bank  of  Columbia  v.  Fitzhugh,  1  H. 

&  G.  239.     §  295. 
Bank  of  Commonwealth  v.  Spilman, 

3  Dana,  150.    §  193. 
Bank  of  the  Dominion  v.  McVeigh, 

20  Gratt.  457.     §  473. 
Bank  of  England  v.  Anderson,  3  Bing. 

N.  C.  666.     §  307. 
Bank  of  Gallipolis   v.    Domigan,  12 

Ohio  St.  220.     §  398. 
Bank  of  Hamilton  v.  Dudley,  2  Ptt. 

492.     §§  165,  169. 
Bank  of  Indiana  v.  New  Albany,  11 

lud.  139.     §  102. 
Bank  of  Ireland  v.  Evans'  Charities. 

5  H.  of  L.  Cas.  405.     §  308. 
Bank  of  Louisiana  v.  WiUiams,  46 

MLss.  618.     §  378. 
Bank  of  Mobile  v.  Meagher,  33  Ala. 

622.     §  333. 
Bank  of  Moni-oe  v.  \\'idner,  11  Paige, 

529.     §  394 
Bank  of  Natchez  v.  State,  6  Sm.  & 

M  599.     §  473. 
Bank  of  Newberry  v.  Railroad  Co., 

9  Rich.  495.    §  193. 
Bank  of  Pennsylvania  v.  Connuon- 

wealth,  19  Pa,  St.  144.     §  300. 
Bank  of  Rome  v.  Village  of  Rome, 

18  N.  Y.  38.     §  75. 
Bank  of  St  Marys  v.  State,  12  Ga. 

475.     §§  163,  166. 
Bank  of  the  State  v.  Bank  of  Cayie 

Fear,  13  Ired  75.     §  473. 
Bank  of  Toledo  v.  Bond,  1  Oliio  St 

622.     §  206. 
Bank  of  United  States  v.  Halstead,  1 
Wheat  51.    §  68. 

V.  Lee,  13  Pet  107.    §  444. 

V.    McKenzie,     2     Brock.     393. 
§  222. 

V.  Merchants'  Bank,  7  Gill,  415. 
§294 
Bank  of  Utica  v.  Smcdes,  3  Cow.  684 

§  193. 
Banks,  Ex  parte,  28  Ala,  28.    g§  333, 

462. 


XVI 


CASES    CITED. 


Banks  t.  Cage,  1  How.  (Miss.)  293. 
§  302. 

T.  Darden,   18  Ga,   318.    §§  207, 
393.  393. 
Bannon  t.  State,  49  Ark.  167.    §  125. 
Baptiste  v.  De  Volunbran,  5  H.  &  J. 

86.    §  294. 
Barber,  Cont.  Election  of,  In  re,  86 

Pa.  St  393.     §  203. 
Barber  v.  Gamson,  4  B.  &  Aid.  281. 
§463. 

V.  Waite,  1  Ad.  &  E.  514.  §  340. 
Bard  v.  Yohn,  26  Pa.  St.  483.  §-377. 
Barden    v.    Crocker,    10    Pick.   383. 

§203. 
Bai-ker  v.  BeU,  46  Ala.  316.    §  138. 

V.  Esty,  19  Vt.  131.    §§  234,  246, 
253. 

V.  Jackson,  1   Paine,  559.     §  187. 

V.  MUlard,  16  Wend.  573.     §  426. 

V.  Pabiier,  L.  R.  8  Q.  B.  Div.  9. 
§455. 
Barkraan  v.  Hopkins,  6  Eng.  (Ark.) 

157.     §  193. 
Barks  v.  Woodi-uff,  13  111.  App.  96. 

§374. 
Barnard  v.  Viele,  21  Wend.  89.    §  454. 
Bamawell  v.  Threadgill,  5  Ired.  Eq. 

86.    §396. 
Barnes  v.  Doe,  4  Ind.  133.    §  363. 

V.  Mayor,  19  Ala.  707.     §  463. 

V.  Supervisors,  51  Miss.  305.    §  75. 

V.  Thompson,  2  Swan,  317.    §  462. 

V.  Williams,  3  Ii-ed.  L.  481.  §  436. 
Bamet  v.  Bamet,  15  S.  &  R.  73.  §  483. 
Bamett,  Ex  parte,  L.  R  4  Ch.  351. 

§333. 
Bamett  v.  ScuUy,  56  Mich.  374.    §  457. 
Barret  v.    Chitwood,    2    Bibb,    431. 

§435. 
Barrett    v.    Dolan,    130    Mass.     366. 

§§  371,  376. 
Barrows  v.  Downs,  9  R.  I.  447.  §  190. 
Barry  v.  Merchants'  Exchange  Co.  1 
Sandf.  Ch.  289.     §  385. 

V.  Randolph,  3  Binn.  277.     §  342. 

V.  ViaU,  13  R.  1. 18.     §  64. 
Bartemeyer  v.  Iowa,  18  WalL  139. 

§370. 


Bartlet  v.  King,  12  Mass.  545.    §  154.. 

V.  Viner,  Skinner,  332.    §  335. 
Bartlett  v.  Board,  59  lU.  364.     §  453. 

V.  Morris,   9  Port.  266.     §§  199, 
210,  238. 

V.  O'Donoghne,  72  Mo.  563.  §  458. 
Barto  V.  Himrod,  8  N.  Y.  483.     §§  67, 

72,  180. 
Barton  v.  Gadsden,  79  Ala.  495.  §  167. 

V.  Hannant,  3  B.  &  S.  16.     §  213. 

V.  McWhinney,  85  Ind.  481.   §  64. 

V.  Mon-is,  15  Ohio,  408.     §  206. 

V.  Port  J.  etc.  Plk.  R.  Co.  17  Barb. 
397.     §  336. 
Bartrull    v.   Remey,   15    Iowa,    257. 

§§  167,  206. 
Basnett  v.  Jacksonville,  19  Fla.  664.. 

§§  132,  133. 
Bass  V.  Mayor,  etc.  30  Ga.  845.    §  483.. 
Bassett  v.  United  States,  3  Ct.  of  CI. 

448.     §§  104,  201. 
Batchelder  v.  Shapleigh,  10  Me.  135. 

§422. 
Bates  V.  Clark,  95  U.  S.  204.    §  162. 

V.  Davis,  76  Ilk  333.     §  374. 

V.  KimbaU,  2  D.  Chip.  77.     §  10. 

V.  Nelson,  49  Mich.  459.    §  87. 

V.  Relyea,  23  Wend.  340.     §  313.- 

V.  Stearns,  23  Wend.  482.  §  482. 
Battle  V.  Shivers,  39  Ga,  405.  §  211. 
Baugher  v.  Nelson,  9  Gill,  299.    §§  474, 

480,  484. 
Bavim  V.  MuUen,  47  N.  Y.  577.     §  400. 
Baumgartner  v.  Hasty,  100  Ind.  575. 

§81. 
Bay  V,  Gage,  36  Barb.  447.    §§  133, 

306,  406. 
Bayard  v.  Smith,  17  Wend.  88.    §§  208 

358. 
Bay  City,  etc.  R.  R  Co.  v.  Austin,  21 

Mich.  390.  §§  163,  166,  308,  358, 
Bay  Co.  v.  Brock,  44  Mich.  45.  §  453. 
Bayley  v.  Hazard,  3  Yerg.  487.  §  454. 
Bayly  v.  Chubb,  16  Gratt  284.    §§  181, 

293. 
Baxter  v.  Tripp,  12  R  I.  310.     §§  321, 

407. 
Beach  v.  Botsford,  1   Doug.  (Mich.) 

199.     §§  337,  391. 


CASES    CITED. 


XV 11 


Beach    v.    Reynolds,   C4    Barb.    506. 
§463. 
V.  Viles,  2  Pet.  678.     §  186. 
BeaU  V.  Beall,  8  Ga.  210.     j;g  400,  442. 
V.   riarwood,  2  Har.   &  J.    167. 
§§219,  234. 
Beals  V.  Hale,  4  How.  37.    §§  138, 153. 
Beams,  Matter  of,  17  How.  Pr.  459. 

§482. 
Bean  v.  Briggs,  4  Iowa,  464.    §  184. 
Bear  Brothers  v.  Marx,  63  Tex.  298. 

§§  240,  262. 
Bearcamp  River  Co.  v.  Woodman,  2 

Greenlf.  404.     §  202. 
Beard  v.  Basye,  7  B.  Mon.  144.     §§  12, 
13,  188. 
v.  Rowan,  9  Pet.  301.     §  212. 
Beari^ark  v.  Hutchinson,  7  Bing.  186. 

§434. 
Beatty  v.  Biimes,  8  Cranch,  98.    §  426. 
V.  People,  6  Colo.  538.     §§  167, 
225. 
Beaty  v.  Knowler,  4  Pet  152.  §§  193, 

365,  387. 
Beaumont    v.   Irwin,   2  Sneed,   291. 

§  223. 
Beaver  County  Indexes,  6  Pa.  County 

Ct.  525.     §  128. 
Beawf age's  Case,  10  Coke,  996.  §§  246, 

436. 
Bechtol  V.  Cobaugh,  10  S.  &  R.  121. 

§163. 
Be.ke    v.   Smith,   2    M.   &  W.   195. 

§§  246,  258,  419. 
Beckett  v.  Union  town  Building  Asso. 

88  Pa,  St  211.     §  456. 
Beckford  v.  Hood,  7  T.  R  620.    §  399. 
Beckman    v.   Stanley.    8    Nev.    257. 

§458. 
Beckwith    v.    Racine,    7    Biss.    142. 

§473. 
Bedell  v.  Janney,  9  lU.  193.     §  367. 
Bedford  v.   Shilling,  4  S.  &  R  411. 

§§  11,  206,  482. 
Beebe  v.   Scheldt   13  Ohio  St  406. 

§395. 
Beecher  v.  Baldy,  7  Mich.  488.   §  398. 
Beekman  Street  Matter  of,  20  Jolm. 
269.    §  391. 


Beer  Co.  v.  Massachusetts,  97  U.  S.  25. 

§473. 
Beers  v.  Haughton,  9  Pet  359.    §  478. 
V.  Phoiuix  Glass  Co.  14  Baib.  358. 

§  385. 
V.  Walliizer,  43  Hun,  254.     §  375. 
Beeson  v.  Green  Mountain  G.  ]VL  Co. 

57  CaL  20.    §  371. 
Belfast  V.  Fogler,  71  Me.  403.    §§  167, 

254 
Bell  V.  Bai-net  2  J.  J.  Marsh.  510. 
§306. 
y.  Holtby,  L.  R.  15  Eq.  178.     §  234. 
V.  Jones,  10  Md.  322.    §  322. 
V.  MoriLson,  1  Pet  315.     §§  186, 

368. 
V.   New    York,    105    N.   Y.   139. 

§246. 
V.  Zelmer,  75  Mich.  66.    §  376. 
Bellmeyer  v.  Independent  Dist  etc. 

44  Iowa,  564.     §  381. 
BeUville  R  R  Co.  v.  Gregory,  15  III. 

20.     §§  96,  215. 
BeUville  S.  Bank  v.  Richardi,  56  ilich. 

453.     §  190. 
Beltzhoover  v.  Gollings,  101  Pa.  St 

293.    §  454. 
Belvidere  v.  WaiTen    R    R   Co.   34 
N.  J.  L.  193 ;  35  id.  587.    §§  163, 
166. 
Beniis  v.  Becker,  1  Kan.  226.    §  336. 
V.  Leonard,  118  Mass.  502.    §§  111,. 

112,  113. 
V.  McKenzie,  13  Yla.  553.     §  184. 
Bender  v.  State,  53  Ind.  254.     §  39. 
Benkert    v.    Benkert,    32    CaL    467. 

§482. 
Benner  v.  Porter,  9  How.  242.     §§24, 

25. 
Bermet  v.  Hargus,  1  Neb.  419.  §§  163, 

164. 
Bennett  v.  Bennett  Deady,  309.  §§22, 
185. 
V.  Birmingham,   31     Pa.   St   15. 

§365. 
V.  Drain  Commissioner,  56  Mich. 

634.     §§  456,  457. 
V.  McWhorter,    2    W.    Va.    441. 
§386. 


•xvm 


CASES   CITED. 


Bennett  v.  North  British  Ins.  Co.  8 
Daly,  417.    §306. 

V.  State,  2  Yerg.  472.     §§  143, 166. 

V.  The  Auditor,  3  W.  Va.   441. 
§833. 

V.  Worthmgton,    24     Ark.    487. 
§§  236,  332. 
Bensley  v.  Bignold,  5  B.  &  Aid.  335. 
§335. 

V.  Ellis,  39  Cal.  309.    §  206. 

T.  Mountain  Lake  Water  Co.  13 
CaL  306.    §§  363,  387. 
Bentley  v.  Eotherham  L.  Board,  L.  R. 

4  Ch.  Div.  588.     §§  210,  212. 
Benton  v.  Wickwire,   54  N.  Y.  226, 

§§  133,  237. 
Berg  V.  Baldwin,  31  Minn.  541.  §  420. 
Berger  v.  Duff,  4  Jolin.  Ch.  368.  §  67. 
Berkowitz  v.  Lester,  121  lU.  999.  §  396. 
Berkshire  v.  Mss.  etc.  R'y  Co.  28  Mo. 

App.  225.    §  154. 
Berley  v.  Rampacher,  5  Duer,  183. 

§206. 
Berliner   v.  Waterloo,   14  Wis.  378. 

§§  42,  109,  294. 
Berluchaux  v.  Berluchaux,  7  La.  539. 

§181. 
Bemier  v.  Becker,  37  Ohio  St.  72. 

§201. 
Berne  v.  Bank  of  England,  9  Ves.  347. 

§297. 
Berry  v.  Baltimore,  etc.  R.  R.  Co.  41 
Md.  446.    §§  40,  42, 43,  45, 110, 
169,  181,  294. 

V.  Bellows,  30  Ark.  198.     §  20. 

V.  Claiy,  77  Me.  482.     §§  215,  240, 
482. 

V.  Clements,  9  Humph.  312;  11 
How.  398.     §  111. 
Bertholf  v.  O'Reilly,  74  N.  Y.  509. 

§373. 
Best  V.  Gholson,  89  IlL  465.    §§  207, 

454,  455. 
Bestor  v.  Powell,  7  111.  119.     §  247. 
Bethlehem  v.  Watertown,  51   Conn. 

490.     §  202. 
Bettis  V.  Taylor,  8  Port.  564.     §  347. 
Bevena  v.  Baxter,  23  Ark.  387.    §§  193, 

198. 


Biagi  V.  Howes,  66  Cal.  469.    §  369. 
Bibb  County  Loan  Asso.  v.  Richards, 

21  G  a.  592.     §  49. 
Biddis  V.  James,  6  Binn.  i321.    §  190. 
Bidwell  V.    Whitaker,  1  Mcli.    469. 

§  324. 
Biffin  V.  Yorke,  5  Man.  &  Gr.  437. 

§238. 
Big  Black  Creek,  etc.  Co.  v.  Common- 

wealtli,  94  Pa.  St.  450.    §§240, 

246,  292,  800. 
Bigelow  V.  Forrest,  9  WalL  339.   §  31 1. 

V.  Gregory,  73  IlL  197.     §  456. 

V.  WiUson,  1  Pick.  485.     §§  110, 
111,  114 
Biggs  V.   McBride,   17  Oregon,  640. 

§108. 
Billerica  v.  Chelmsford,  10  Mass.  394. 

§366. 
BilJiugs  V.  Baker,  28  Barb.  343.  §§  140. 

400,  442. 
BUhngslea  v.  Baldwm,    23  Md.   85. 

§286. 
BiUingsley    v.    Dean,    11    Ind.    331. 

§297.       ■ 
Bingham  v.  Camden,  40  N.  J.  L.  156. 
§127. 

V.  Supervisors,  8  Minn.  441.   §  229. 
Bingham's  Trustees   v.   Guthrie,   19 

Pa.  St.  418.    §  439. 
Bingham  ton    Bridge,     3    Walk    51. 

§378. 
Binney    v.   Canal    Co.    8    Pet.    201. 

§246. 
Binz  V.  Weber,  81  lU.  288.  §§  91,  96. 
Bmzel  V.  Grogan,  67  Wis.  147.  §  422. 
Birchard  v.  Booth,  4  Wis.  67.  §  449. 
Bnd  V.  Commonwealth,  21  Gratt.  800. 
§§  185,  293. 

V.  County  of  Wasco,  3  Ore.  282. 
§§  135,  138. 

V.  Jones,  37  Ark.  195.     §  224. 
Bu-dsaU  V.  Cai-rick,  3  Nev.  154     §§  56, 

57. 
Birmingham,  etc.  St  R'y  Co.  v.  Bir- 
mingham St.  R'y  Co.  79  Ala  465. 

§378. 
Bishop  V.  Barton,  2  Hun,  436.   §§  211, 

218,  239,  284 


OASES   CITED. 


XIX 


-Bishop  V.  Globe  Co.  135  Mass.  132. 
§14. 
V.  Jones,  28  Tex.  294.    §  306. 
Bissell  V.  Bissell,  11  Barb.  96.    §  115. 
Bitters  v.  Board,  81  Ind  125.    §  92. 
Bittle  V.  Stuart,  34  Ark.  224    §§  1(59, 

173. 
Black  V.  Cohen,  52  Ga.  626.    §§  77, 
93. 
V.  Johns,  68  Pa.  St.  83.    §  111. 
V.  Tricker,  59  Pa.  St  13.    §  283. 
T.  Trower,  79  Va  123.    §§  173, 
174 
Blackford  v.  Hui-st,  26  Gratt  206. 

§§  156,  161. 
Blackman  v.  Gordon,  2  Rich.  Eq.  43. 
§480. 
V.  Nearmg,  43  Conn.  56.    §  114 
Blackwell    v.     State,    45    Ark.    90. 

§§  142,  149. 
Blackwood  v.  Queen,  L.  R.  8  App. 
Cas.  96.    §  246. 
V.    Van    Vliet,    30    Mich.    118. 
§§  321,  407,  478. 
Bladen  v.  Philadelphia,  60  Pa.  St. 

464    §§  139,  203,  447,  454,  459. 
Blain  v.  BaUey,  25  Ind.  165.    §§  158, 

202. 
Blair  v.  Caxy,  9  Wis.  543.    §§  206, 
482. 
V.  Ridgely,  41  Mo.  63.    §  21. 
Blake  v.  Brackett,  47  Me.  28.    §  260. 
V.  Crowningshield,  9   N.  H.  304 

§111. 
V.  Heyward,    Bailey's     Eq.  208. 

§324 
V.  Midland  R'y  Co.  10  L.  &  Eq. 

437.    §371. 
V.  National  Banks,  23  WalL  307. 
§300. 
Blakemore   v.   Dolan,    50    Ind.   194 

§§  131,  132. 
Blaieney  v.  Blakeney,  6  Port  109. 

§§  410,  416. 
Blanchard    v.   Russell,   13    Mass.    1. 
§191. 
V.  Sprague,  2  Story,  164    §  380. 
V.  Sprague,  3  Sumn.  279.     §g  218, 
261,  442,  463. 
b 


Blanding  v.  Burr,  13  CaL  357.    §§  71, 

75. 
Blankard  v.  Galdy,  2  Salk.  414    §§  15, 

19,  184 
Blasdell  v.  State,  5  Tex.  App.  263. 

§222. 
Blatz    V.    Rohrbach,    42    Hun,    402. 

§375. 
Blemer  v.  People,  76  IlL  265.    §§  252, 

260. 
Blessing  v.  Galveston,  43  Tex.  641. 

§§  41,  46. 
Block  V.  State,  66  Ala.  493.    §  85. 
Blodgett  In  re,  27  Hun,  12.     §  92. 
Blodgett,  Matter  of,  89   N.  Y.  392. 

§87. 
Blood    V.    Fairbanks,    50    CaL    420. 
§§  223,  224. 

V.    Humphrey,    17    Barb.    660. 
§338. 
Bloodgood   V.   Grasey,  31  Ala.  575. 

§§  191,  320,  333. 
Bloom  V.  Burdick,  1  Hill,  130.   §§  392, 
454 

V.    Richards,    2    Ohio    St    387. 
§336. 
Bloomer  v.  StoUey,  5  McLean,  158. 

§136. 
Blue  V.  McDuffie,  Busbee,  L.  (N.  C.) 

131.    §  212. 
Bly  V.  National  Bank,  79  Pa.  St  453. 

§336. 
Board  of  Assessors  v.  Central  R.  R. 

Co.  48  N.  J.  K  146.    §  127. 
Board  of  Commissioners  v.  Baker,  80 
Ind.  374     §g  86,  87,  102. 

V.  Potts,  10  Ind.  286.    §§  145, 154 

V.  SUver,  22  Ind.  491.    §  170. 

V.  Spitler,  13  Ind.  235.    §  298. 

V.  State,  9  Gill,  379.    §  213. 
Board  of  Education  v.  Barlow,  49  Ga. 

241.    §77. 
Board  of  Health  v.  Hill,  13  C.  B.  (N.  S.) 

483.     §301. 
Board  of  Supei-risors  v.  Auditor-Gen- 
eral, 65  IMich.  408.     §  95. 
Boas  V.  Nagle,  3  S.  &  R  253.    §  342. 
Boatwright  v.  Faust^  4  McCord,  439. 

§480. 


CASES    CITED. 


Bock    V.    Laiiman,  24  Pa.   St    435. 

g§  1S4,  190,  192. 
Bode  V.  State,  7  Gill,  328.    §  246. 
Bodge  V.  Hughes,  53  N.  H.  614.    §  373. 
Boehm  V.  Engle,  1  DalL  15.   §§  15, 184. 
Bogai-dus  V.  Trinity  Church,  4  Paige, 

198.     §15. 
Boggs  V.  Reed,  5  Iilart.  673.     §  297. 
Boice  V.  Boice,  27  Minn.  371.    §  478. 
Boismai-e  v.  His  Creditors,  8  La.  315. 

§168. 
BoUin  V.  Shiner,  12  Pa-  St.  205.  §  252. 
Bolton  V.  King,  105  Pa.  St.  78.  §§  207, 

440. 
Bolton  School,  Ex  parte,  2  Bro.  C.  C. 

662 ;  Madd.  Ch.  719.    §  194 
Bond  Debt  Cases,  12  S.  C.  200.    §§  41, 

48. 
Bond  V.  Hopkins,  1  Sch.  &  Lef.  433. 
§427. 

V.  Munro,  28  Ga.  597.     §§  206, 
463,  481. 
Bonds  V.  Greer,  56  Miss.  710.    §  237. 
Bonham  v.   Board  of  Education,  4 

Dill  156.    §204. 
Booker    v.   McRoberts,  1    CaU,  243. 

§§  202, 399. 
Boon  V.  Bowers,  80  Miss.  246.   §§  194, 
315. 

V.  Juhet,  2  HL  258.    §  222. 
Boone  v.  State,  12  Tex.  App.  184.  §  75. 
Boone    Co.  v.  Keck,   31    Ark.    387. 

§428. 
Booth   V.  Ibbotson,  1  Y.  &  J.  360. 
§307. 

V.  Kitchen,  7  Hun,  260.     §§  333, 
337. 

V.  State,  4  Conn.  65.    §  367. 

V.  WiUiams,  2  Ga.  252.     §  411. 
Boothroyd,  In    re,  15  M.  &  W.   1. 

§210. 
Borden  v.  State,  11  Ark.  519.    §  314. 
Borrowdale,  The,  39  Fed.  Rep.  376. 

§133. 
Borst  V.  Griffin,  5  Wend.  84    §  115. 
Bosanquet  v.  Woodford,  5  Q.  B.  310. 

§448. 
Bosley  v.  Daviee,   1   Q.  B.  Div.  84 

§  256. 


Bosley  v.  Mattingly,  4  B.  Mon.  8^»- 

§§  238,  407. 
Boston  V.  Cummins,  16  Ga.  102.  §§  105, 

107. 
Boston,  etc.  Co.  v.  Gardner,  2  Pick. 

33.    §441. 
Boston,  etc.  R.  R  Co.,  Matter  of,  53 

N.  Y.  574    §  388. 
Boston,  etc.  R.  R.  Co.  v.  Cilley,  44 

N,  H.  578.     §  206. 
Boston  Min.  Co.,  In  re,  51  Cai  624 

§§  210,  211. 
Boston  Water  Power  Co.  v.  Boston, 

etc.  R  R  Co.  23  Pick.  360.  §  388. 
Botanic  Med.  College  v.  Atchinson, 

41  Miss.  188.    §§  191,  256. 
Bouknight  v.   Epting,   11  S.   C.   71. 

§480. 
Bouldin  v.  Lockhart,  1  Lea,  195.  §48. 

V.    Phelps,    30    Fed.    Rep.    547. 
§  295. 
Boulton  V.  BuU,  2  H.  BL  499.    §  194 

V.  Royce,  10  Phila.  559.     §  168. 
Bound  V.  R  R  Co.  45  Wis.  543.  §§  42, 

45,  46. 
Bourgigncn  Building  Asso.  v.  Com- 

monweiltla,  98  Pa,  St.  54   §§  136. 

266. 
BoutweU  V.  Foster,  24  Vt.  485.    §  336. 
Bovard  v.  Kettering,  101  Pa.  St  181. 

§338. 
Bowen,  Matter  of  WiU  of,  34   CaL 

682.    §  395. 
Bowen  v.  Lease,  5  Hill,  221.    §§  137, 

138,  140,  152. 
Bower  v.  Hope  Life  Ins.  Co.  11  H.  of 

L.  Cas.  389.    §  462. 
Bowers  v.  Green,  1  Scam.  42.    §  316. 
Bowles  V.  Cochran,  93  N.  C.  398.  §  283. 
Bowman  v.   BIyth,   7  EL  &  BL  47. 
§§  139,  355. 

T.  Cockrill,  6  Kan.  311.    §§  84, 
93,  96. 

V.  Wood,  41  IlL  203.    §§  111,  113, 
114 
Bows  V.  Fenwick,  L.  R  9  C.  P.  339. 

§280. 
Bowyer  v.  Camden,  50  N.  J.  L.  87. 

§159. 


CASES    CITED. 


XXI 


Boyce  v.  Holmes,  2  Ala.  54.    §  206. 
V.  Tabb,  18  Wall.  546.    §  429. 
V.  Wabash  R'y  Co.  63  Iowa,  70. 
§14. 
Boyd  V.  Alabama,  94  U.  S.  645.    §  318. 
V.  Bi-yant,  35  Ark.  69.    §  75. 
T.  Hood,  57  Pa,  St.  98.     §  363. 
V.  Lowry,  53  Miss.  353.     §  393. 
V.  Watt,  27  Ohio  St.  359.    §  377. 
Boyen  v.  Crane,  1  W.  Va,  176.    §  64 
Boykin  v.  State,  50  Miss.  375.     §  448. 
Boyle,  In  re,  9  Wis.  264.    g§  109,  130, 

193. 
Bracken  v.  Smith,  39  N.  J.  Eq.  lB9. 

§§  154,  156. 
Brackett   v.   Brackett,  61    Mo.  223. 
§111. 
V.  Norton,  4  Conn.  517.     §§  189, 
190. 
Bradbum  v.  Great  W.  R'y  Co.,  L.  R. 

10  Ex.  1.     §  371. 
Bradbury  v.  Wagenhorst,  54  Pa.  St 

182.     §§  237,  238,  260,  332,  333. 
Bradford    v.   Barclay,  42    Ala.   375. 
§§  206,  482. 
V.  Floyd,  80  Mo.  207.    §  306. 
V.  Jones,  1  Md.  351.    §§  210,  211. 
T.  Treasurer,  Peck,  435.    §§  196, 
236. 
Bradley  v.  Baxter,  15  Barb.  123.    §  67. 
v.  Clark,  5  T.  R.  201.    §  196. 
V.  Commissioners,  J  Humph.  438. 

§183. 
V.  Ins.  Co.  3  Lans.  341.     §  184. 
V.  Jamison,  46  Iowa,  68.    §  394 
V.  McAtee,  7  Bush,  667.    §  473. 
V.  New  York,  etc.  R.  R  Co.  21 

Conn.  305.     §  388. 
V.  Richmond,  6  Vt  121.    §  428. 
T.  State,  69  Ala.  318.    §  256. 
Bradshavv  v.   Mayfield,   18  Tex.   21. 

§397. 
BradweU's  Case,  55  111.  535.    §  321. 
BradweU   v.    State,    16    WalL    130. 

§321. 
Brady  v.  ]Mayor,  etc.  20  N.  Y.  312. 
§381. 
V.  Northwestern  Ins.  Co.  11  Mich. 
425.    §367. 


Brady  v.  Page,  59  Cal.  52.    §  298. 

V.  West,  50  Miss.  68.     §  182. 
Brady  Street,  In  re,  99  Pa.  St  591. 

§273. 
Bragg  V.  Clark,  50  Ala.  363.    §§  223, 

224 
Brain  v.  Thomas,  50  L.  J.  Q.  B.  Div. 

663.    §  204 
Brainard  v.   Bushnell,  11  Conn.  17. 

§10. 
Bramwell  v.  Penneck,  7  B.  &  C.  536. 

§270. 
Branagan  v.   Dulaney,  8  Colo.  408. 

§§  160,  220. 
Branch  v.  Bm-nley,  1  Call,  147.  §  295. 
Branch  Bank  v.  Murphy,  8  Ala.  119. 
§104 
V.  Tillman,  12  Ala.  214     §  399. 
Brandling  v.  Barrington,  6  B.  &  C. 

475.    §§410,414 
Brandon  v.  Pate,  2  H.  Black.  308. 
§360. 
V.  Sands,  2  Ves.  Jr.  514    §  360. 
V.  State,  16  Ind.  197.    §  101. 
Branhani  v.  Lange,  16  Ind.  497.  §  135. 

V.  Long,  78  Va.  352.     §  217. 
Bramston  v.  Colchester,  6  K  &  B. 

246.     §  159. 
Bratton  v.  Grey,  12  S.  C.  42.    §  133. 
Braun  v.  Sauerstein,  10  WalL  218. 

§136. 
Bray  v.  Hudson,  50  N.  J.  L.  82.  §  128. 
V.  Wallingford,   20   Conn,    416. 
§428. 
Breitenbach  v.  Bush,  44  Pa.  St  313. 

§§  364  478. 
Breitimg  v.  Lindauer,  37  Midi.  217. 

§§  137,  138,  358,  476. 
Bremer  v.  Freeman,  10  Moore  P.  C. 

306.     §193. 
Brenham  v.  Brenham  Water  Co.  67 

Tex.  542.     §§  378,  384. 
Brennan  v.  Bradshaw,  53  Tex.  330. 

§378. 
Brent  v.  Chapman,  5  Cr.  358.    §  479. 
Brett    V.    Brett     3    Addams,    219. 

§§  210,  213. 
Bretz  V.  Mayor,    etc.    6   Rob.    335. 
§193. 


TTIl 


CASES   CITED. 


Bi-etz  V.  Mayor,  etc,  3  Abb.  Pr.  (N.  S.) 
478.    §194 
V.  New  York,  6  Eobt  325.    §  198. 
V.  New  York,  4  Abb.  Pr.  (N.  S.) 
258.    §198. 
Brevoort  v.  Grace,  53  N.  Y.  245.  §  194. 
Brewer   v.    Blougher,    14  Pet.   198. 
§§  240,  246,  330. 
V.  Brewer,  62  Me.  62.    §  67. 
Brewster  v.  Syracuse,  19  N.  Y.  116. 

§88. 
Brice  v.  State,  2  Ovei-t  254.    §§  17, 

184,  189. 
Bridge  v.  Branch,  L.  R  1  C.  P.  Div. 

633.    §322. 
Bridge  Co.  v.  Hoboken,  etc.  Co,  13 

N.  J.  Eq.  94    §§  378,  380,  473. 
Bridgeport  v.  R,  R.  Co.  15  Conn.  475. 

§380. 
Bridges  v.  Sballcross,  6  W.  Va.  574 

§  333. 
Bridgman,  In  re,  1  Drew.  &  S.  169. 

§462. 
Brieswick  v.  Mayor,  etc.  51  Ga,  639. 

§102, 
Briffitt  V.  State,  58  Wis.  39.    §  303. 
Brig  Aon,  The,  1  Gall  61.    §  104 
Brig  AVilliam  Gray,  The,  1  Paine,  16. 

§355. 
Briggs  V.  Allen,  4  Hill,  538.    §  371. 
V.  Cottrell,  4  Strob.  86.    §  464 
V.  Hubbard,  19  Vt  86.    §  206. 
V.  Smith,  83  N.  C.  306.    §  146. 
Brigham  v.  Edmunds,  7  Gray,  359. 

§370. 
Bright  V,  McCuUoch,  27   Ind.    223. 

§§  88,  122. 
Brimhall  v.  Van  Campen,  8  Minn.  13. 

§184 
Brinkley  v.  Swicegood,  65  N.  C.  626. 

§§  162, 168. 
Brmsfield  v.  Carter,  2  Ga.  150.    §§  218, 

219,  246. 
Brisbane  v.  Peabody,  8  How.  Pr.  109. 

§454 
Brisbin   v.  Farmer,    16   Minn.    215. 

§226. 
Briscoe  v.  Bank  of  Kentucky,  11  Pet 
257.    §197. 


Bristol  V.   SequevUle,  5  Exch.  275. 

g§  12,  184,  190,  192. 
British  Farmers',  etc.  Co.,  Re,  48  L.  J. 

Ch.  56.    §  238. 
Britt  V.  Robioson,  L.  R.  5  C.  P.  513. 

§§  348,  350. 
Broadbent  v.  State,  7  Md.  416.    §  400. 
Broaddus  v.  Broaddus,  10  Bush,  299. 

§§  154,  155,  156,  255. 
Broad  Street  Hotel  Co.  v.  Weaver,  57 

Ala.  26.    §  296. 
Broadway  Bap.  Church  v.  McAtee,  8 

Bush,  508.     §  365. 
Brocaw  v.  Board,  etc.  73  Ind.  543. 

§132. 
Brock  V.  Parker,  5  Ind.  538.    §  206. 
Brockbank  v.  Whitehaven  R  Co.  7 

H.  &  N.  834    §  205. 
Brocket  v.  Ohio  &  P.  R.  Co.  14  Pa. 

St.  241.    §§  247,  253,  291,  328, 378. 
Brodnax  v.   Groom,  64  N.   C.   244. 

§47. 
Bronson   v.    Kinzie,    1    How.    819. 
§§  206,  471,  476,  477,  478. 

V.  Newberry,  2  Doug.  (Mich.)  3a 
§206. 
Brooklyn  Gravel  R.  Co.  v.  Slaughter, 

33  Ind.  185.     §  381. 
Brooklyn  L.  Ins.  Co.  v.  Bledsoe,  53 

Ala.  538.    §336. 
Brooks  V.  Boswell,  34  Mo.  474    §  343. 

V.  Cock,  3  Ad.  &  R  141.    §  458. 

V.  Cook,  44  IHich.  617.    §§  271, 373. 

V.  Hicks,  20  Tex.  666.    §241. 

V.  Hyde,  37  CaL  375.    §§  121, 19a 

V.  Hydom,  76  Mich.  273.  §§  90, 91. 

V.  Mobile  School  Commissioners, 
31  Ala.  227.    §§215,240. 
Brookville    Ins.    Co.    v.  Records,   5 

Blackf.  170.    §  193. 
Broome  v.  Wellington,  1  Sandf.  660. 

§115. 
Brothers  v.  Mundell,    60  Tex.    240. 
§256. 

V.  State,  2  Cold.  201.    §166. 
Brotherton  v.  Brotherton,  41  Iowa, 

112.    §226. 
Broughton  v.  Branch  Bank,  17  Ala. 

82a    §166. 


CASES    CITED. 


XXUI 


Broughton    v.    Manchester    Water- 
works Co.  3  B.  &  Aid.  1.    §  345. 
Brewer  v.  Bowers,  1  Abb.  App.  Dec. 

214     §323. 
Brown,  In  re,  21  Wend.  316.    §  256. 
Brown,  In  re,  21   L.  J.   N.  C.   113. 

§262. 
Brown  v.  Barry,  3  Dall.  365.    §§  136, 

137,  168,  246,  290. 
V.  Buzan,  24  Ind.   194     §§  111, 

329,  331,  332. 
V.  ChanceUor,  61  Tex.  437.  f§  138. 
V.  County  Commissioners,  21  Pa. 

St  37.     §§  138,  157,  220. 
V.  Cousens,  51  Me.  301.    §  146. 
V.  Denver,  7  Colo.  305.    §§  117, 

130. 
V.  Duncan,  10  B.  &  C.  93.    §  336. 
V.  Elms,  10  Humph.  135.    §  298. 
V.  Fifield,  4  Mck  322.    §§  207, 

401. 
V.    Fleischner,    4    Oregon,    132. 

§64 
V.  Fowzer,  114  Pa.  St.  446.    §  390. 
V.  Gates,  15  W.  Va.  131.    §§  411, 

428. 
V.  Graham,  58  Tex.  254    §  344. 
V.  Great  W.  R'y  Co.,  L.  R.  9  Q.  B. 

Div.  753.     §§  138,  240. 
V.  Hamlett,  8  Lea,  732.    §  246. 
V.  Haywood,  4  Heisk.  357.    §  124 
V.  McCormick,     28    Mich.     215. 

§§  138,  148,  405. 
V.  Maryland,     12    Wheat    438. 

§222. 
V.  Mayor,  etc.  63  N.  Y.  239.   §483. 
V.  Miller,  4  J.  J.  Marsli.  474  §  202. 
V.  Nasli,  1  Wyoming,  85.    §  41. 
V.  Pendergast,  7  AUen,  437.   §  436. 
V.  Piper,  91  U.  S.  37.     §§  301,  304 
V.  R'y  Co.  83  Mo.  478.     §  454 
V.  State,  73  Ga.  38.    §g  88,  93,  95, 

96. 
V.  State,  23  Md.  503.    §  117. 
V.  State,  5  Colo.  496.    §  311. 
V.  Thompson.  14  Bush,  538.  §429. 
V.  Tucker,  7  Colo.  30.    §  394 
V.  United  States,  113  U.  S.  568. 

§309. 


Brown  v.  Wilcox,  14  S.  &  IL  127. 

§g  206,  479. 
Browning   v.  Jones,  4  Humph.  69. 
§138. 
V.  Wheeler,  24  Wend.  258.   §  439. 
Bruce  v.  County  of  Dodge,  20  Minn. 
388.    §119. 
V.  Schuyler,  9  IlL  221.    §  202. 
V.  Wood,  1  Met  542.     §  184 
Brucker  v.  State,  19  Wis.  539.    §  299. 
Bruffett  V.  G.  W.  R  R  Co.  25  HL  353. 

§473. 
Brush   V.    Scribner,    11    Conn.    407. 
§190. 
V.  Wilkins,    4   Johns.    Ch.  506. 
§190. 
Brunswick  v.  Litchfield,  2  GreenL  28. 

§206. 
Bryan  v.  Dennis,  4  Fla.  445.    §  283. 
V.  Sundberg,  5  Tex.  418.    §§  154, 
204 
Bryant,  In  re,  Deady,  118.    §  340. 
Bryant  v.  Kelton,  1  Tex.  434    §  190. 
v.  Lefever,    4    C.  P.    Div.    172. 

§265. 
V.  Tidgewill,  133  Mass.  86.    §377. 
Buchanan  v.  Robinson,  3  Baxt  147. 

§138. 
Bucher  v.  Commonwealth,  103  Pa. 
St  528.    §  273. 
V.  Henderson,  L.  R.  3  Q.  B.  335. 
§165. 
Buck  V.  Dowley,  16  Gray,  555.    §  39L 

V.  Spofford,  31  Me,  34.    §  256. 
Buckallew  v.  Ackerman,  8  N.  J.  Lh 

48.    §§  138,  142. 
Buckingham  v.  BiUings,  13  Mass.  82. 
§§  372,  423. 
V.  Gregg,  19  Ind.  401.   §§  298,  306. 
Bucklewv.  R  R  Co.  64  Iowa,  603. 

§127. 
Buckley,  Ex  pai-te,  53  Ala,  42.    §§  463, 

482. 
Buckley  v.  Lowiy,  2  Mich.  419.    §  454 
Bucklin  v.  Ford,  5  Barb.  393.    §  436. 
Buckmaster  v.  McEh-oy,  20  Neb.  557. 

§§  373,  375. 
Buckner  v.  Real  Estate  Bank,  5  Ark. 
536.     §§  253,  322,  346. 


XXIV 


CASES    CITED. 


Bucky  -  Willard,  16  Fla.  330.    §  170. 
Budd  V.  State,  3  Humph.  483.   §§  119, 

124 
BueU  T.  State,  72  Ind.  533.    §  299. 
Buffalo,  Matter  of  the  City  of,  68 

N.  Y.  167.     §§  344,  388,  389. 
Buffalo  City  Cemetery  Co.  v.  Buffalo, 

46  N.  Y.  506.     §  364 
Buffalo,  etc.  Co.  v,  N.  Y.  etc.  R  R.  Co. 

10  Abb.  N.  C.  107.     §  305. 
Buffham    v.    Racine,    26  Wis.    449. 

§428. 
Buf  ord  V.  Bostick,  58  Tex.  63.    §  394 

V.  Tucker,  44  Ala.  89.     §  298. 
Bugher  v.  Preapott,  23  Fed.  Eep.  20. 

§§  102,  103. 
Bulkley   v.    Eckert,    3  Pa.  St  268. 

§§  324,  428. 
Bull  V.  Comroe,  13  Wis.  238.    §  119. 

V.  Read,  13  Gratt.  88.    §§  72,  75. 

V.  Rowe,   13  S.  C.   355.     §§  171, 
322. 
BuUard  v.  Bell,  1  Mason,  290.    §  340. 
Bullock  V.  Fladgate,  1  Ves.  &  Bea. 
471.     tj  194 

V.  T.inp.oln,  2  Strange,  914    §  115. 
Bumsted  v.  Govern,  47  N.  J.  L.  368 : 

48  id.  612.     §§  125, 127. 
Bunce  v.  Reed,  16  Barb.  127    §  112. 
Bunn  V.  Gorgas,  41  Pa.  St.  441.    §  478. 
Burch   V.  Newbmy,   10   N.    Y.  374 
g§  10,  206,  480. 

V.  Watts,  37  Tex.  135.     §  393. 
Burden  v.  Stein,  25  Ala.  455.     §  322. 
Burder  v.  Veley,  12  Ad.  &  E.  246. 

g362. 
Burdiae  v.  Grand  Lodge,  37  Ala.  478. 

§306. 
Bvu-gess  V.   Hargrove,   64   Tex.  110. 
§§  253,  255. 

V.  Pue,  2  GiU,  11.    §  72. 

V.  Salmon,  97  U.  S.  381.     §§  110, 
182. 
Burgett    V.    Burgett,    1    Ohio,     219. 

§§  207,  410. 
Burgoyne  v.  Supei"visors,  5  CaL   9. 

§§  10,  204 
Burhof  V.  Milwaukee,  21  Wis.  257. 

§§  193,  194 


Burke    v.   Monroe  Co.    77  HL    610. 

§§  97,  215,  240,  245. 
Burkholtz  V.  State,  16  Lea,  71.    §§119, 

123,  124,  169,  180. 
Bm-lander  v.  Railway  Co.  26  Wis.  76. 

§154 
Burlington  v.  Burlington,  etc.  R'y  Ca 

41  Iowa,  134    §  167. 
Burlington,  etc.  R  R.  Co.  v,  Thomp- 
son, 31  Kan.  108.    §  14 
Bum  V.  CarvaUio,  4  Nev.  &  K  893. 

§107. 
Burnet,  Ex  parte,  30  Ala.  461.    §  380. 
Bm-nett  v.  Henderson,  21  Tex.  588. 
§298. 
v.  Tm-ner,  87  Temu  124    §  132. 
Bm-nham  v.  Acton,  4  Abb.  Pr.  (N.  S.) 
1.    §198. 
V.  Acton,  35  How.  Pr.  48.    §  193. 
V.  Fond  du    Lac,    15    Wis.   193. 

§428. 
V.  Onderdonk,    41     N.    Y.     425. 

§§  147,  321,  327,  399. 
V.  Stevens,  33  N.  H.  249.    §  256. 
V.  Summer,  50  INIiss.  517.     §  400. 
V.  Webster,  5  Mass.  266.     §  193. 
Bm-nside  v.  Lincoln  Co.   Court,  86 
Ky.  423.     §  92. 
V.  Wliitney,  21  N.  Y.  148.  §§  139, 
207,  290,  439. 
Bm-r  V.  Dana,  22  CaL  11.     §§  218,  240, 
246,  429. 
V.  Ross,  19  Ark.  250.    §  41. 
Burt  V.  WiUiams,  24  Ark.  91.     §  478. 
V.  Winona,  etc.  R  R  Co.  31  Minn. 
472.     §§41,54 
Burton  v.  Anderson,  1  Tex.  93.  §  190. 
V.  School  Commissioners,  Meigs, 
589.     §  124 
BurweU    v.    Tulhs,    12    Mmru    572. 

§133. 
Bush  V.  Brainard,  1  Cow.  78.     §  290. 

V.  RepubUc,  1  Tex.  455.     §  144 
Bussing    V.    Bushnell,    6    Hill,    382. 

§290. 
Butcher  v.  Bank  of  Brownsville,  3 
Kan.  70.     §  294 
V.  Hendei-son,  L.  R  3  Q.  B.  335. 
§163. 


OASES   CITED. 


XXV 


iButler  V.  Palmer,  1  HiU,  324    §§  162, 
464,  482. 

V.  Penusylvania,   10    How.    402. 
§473. 

V.  Robinson,  75  Mo.  192.     §  194. 

V.  Rochester,  4  Hvm,  321.    §  322. 

V.  RiisseU,  3  Cliff.  251.    §  168. 
Butts  V.  Vicksbui'g,  etc.  R  R  Co.  63 

Miss.  462.    §§218,223. 
Butz  V.  Muscatine,  8  Wall.  575.  §  478. 
Byard  v.  State,  57  Miss.  243.    §  231. 
Byrd  v.  Brown,  5  Ark.  709.     §§  395, 
397. 

V  State,  57  Miss.  243.    §  402. 
By  water  v.  Brandling,  7  B.  «&  C.  643. 

§212. 

Cadogan  v.  Kennett,  2  Cowp.  434. 

§444. 
Cahall  V.  Citizens'  Mut  B.  Asso.  61 

Ala.  232.     §  156. 
Cain  V.  Goda,  84  Ind.  209.  §§  108, 109. 
Calder  v.  BuU,  3  Dall.  386.    §§  143, 
19G,  206,  465. 

V.  Kui-by,  5  Gray,  597.    §  473. 
Calderwood    v.   Calderwood,  38  Vt. 

171.    §  254. 
CaldweU  v.  Alton,  33  IlL  416.    §  380. 

V.  Barrett,  73  Ga.  604     §§  75,  96. 

V.  State,  34  Ga.  18.     §  342. 

V.  Vanvlissengen,   9    Haie,    425. 
§  13. 
Caledonian  R'y  Co.  v.  North  British 

R'y  Co.,  L.  R  6  App.  Cas.  122. 

§§  238,  241,  246. 
Calhoun  v.  Dellii,  etc.  R  R  Co.  28 
Hun,  379.    §133. 


V.  Kellogg,  41  Ga.  231.     §  479. 


10, 


V.  McLendon,  42  Ga.  405. 
11,  422. 
Calkin  v.  Cocke,  14  How.  227.    §  189. 
Calking  v.   Baldwin,  4  Wend.   667. 

§§  193,  325. 
Calkins  v.  State,  14  Ohio  St  222.  §  166. 
CaU  V.  Hagger,  8  Mass.  430.    §  478. 
CaUaday  v.  Pilkmgton,  12  Mod.  513. 

§372. 
CaUaghan  v.  Chipman,  59  Mich.  610. 

§170. 


CaUanan  v.  Judd,  23  Wis.  343.    §  397. 
Callaway  v.  Harding,  23  Gratt  547. 

§223. 
CaUis  V.  Waddy,  2  Munf.  511.    §  427. 
CaUoway  v.  Laydon,  47  Iowa,  456. 
§374 

V.  WUhe's   Lessee,    2   Yerg.    1. 
§184 
CaUum  V.  Pettigiew,  10  Heisk.  394 

§458. 
CaUy  V.  Anson,  4  Wis.  223.    §  440. 
Calvert   v.    WiUiams,    34   Md.    672. 

§112. 
Cambria  Iron  Co.  v.  Ashbum,  118 

U.S.  54    §156. 
Cambrian  R'y  Co.'s  Scheme,  In  re, 

L.  R  3  Ch.  278.    §§  257,  267. 
Cambridge  v.  Boston,  130  Mass.  357. 

§206. 
Camden  v.  Allen,  26  N.  J.  L.  39a 

§§  204  325. 
Camden,  etc.  R  R  Co.  v.  Briggs,  23 

N.  J.  L.  623.     §  358. 
Cameron  v.  Blackman,  39  Mich.  108. 
§296. 

V.  Merchants',  etc.  Bank,  37  jMich. 

240.  §309. 

V.  Smith,  50  CaL  303.    §  146. 
Campau    v,   Detroit,  14   Mich.    276. 

§§  135,  137. 
CampbeU's  Case,  2  Bland's  Ch.  209. 

§194 
Campbell,  Ex  parte,  L.  R  5  Ch.  703. 

§255. 
CampbeU  v.  AUison,  63  N.  C.  568. 
§454 

V.  Board  of  Pharmacy,  45  N.  J.  I* 

241.  §93. 

V.  Hall,  1  Cowp.  208.    §§  13, 19. 

V.  International    Life,  4  Bosw. 
317.    §115. 

V.     Schlesinger,    48    Hun,    428. 
§375. 
CampbeU,  etc.  Co.  v.  Nonpariel,  etc 

Co.  75  Ya.  291.    §  464 
Canady  v.  George,  6  Rich.  Eq.  103. 

§  137. 
Canal  and  Walker  Sts.,  Matter  of,  13 

N.  Y.  406.     §  342. 


XXVI 


CASES   CITED. 


Canal  Commissioners  v.  People,  15 

WendL  445.     §  184. 
Canal  Co.  v.  Railroad  Co.  4  Gill  &  J. 

152.     gg  210.  215,  411. 
Candee,  Ex  parte,  48  Ala.  386.    §  397. 
Carman  v.  Bryce,  3  B.  &  Aid  179. 

§336. 
Cannon  v.  HemphiU,  7  Tex.  184.  §80. 

V.  Mathes,  8  Heisk.  504.    §§  66,  80. 
Canti-eU  v.  Conner,  51  How.  Pr.  45. 

§422. 
Canty   v.  Sanderford,    37    Ala.    91. 

§400. 
Cape  Girardeau  v.  Riley,  52  Mo.  428. 

§161. 
Caperon  v.  Sti-out,  11  Nev.  304.  §§  134, 

167. 
Carey  v.  Cincinnati,  etc  R  R.  Co.  5 
Iowa,  357.     §§  12,  297. 

V.  GUes,  9  Ga.  253.    §  444 
Cargo    of    Brig    Aui-ora   v.  United 

States,  7  Cr.  382.    §§  72,  168,  182. 
Carleton  v.  Goodwin,  41  Ala  153.  §  10. 
Carlisle  v.  Carlisle's  Adm'r,  2  Harr. 
318.    §67. 

V.  State,  42  Ala.  523.    §  166. 

V.  Stitler,  1  Pen.  &  W.  6.     §  364. 
Carmichael   v.   Hays,  66    Ala.    543. 

§154. 
Carmon  v.  State,  18  Ind.  450.    §  303. 
Cames  v.  Parish  of  Red  River,  29 

La.  Ann.  608.    §  482. 
(.Jarothers  v.  Wheeler,  1  Oregon,  194. 

§§  111,  114 
Carpenter's    Case,    14   Pa.    St    486. 

§342. 
Carpenter   v.  Dexter,  8   Wall   513. 
§293. 

V.  Herrington,    25    Wend.    370. 
§364 

V.   Montgomery,   7  Blackf.   415. 
§§  107,  108. 

V.   Pennsylvania,   17  How.   456. 
§§164197. 

T.  People,  8  Barb.  603.    §  208. 
Carr  v.  Thomas,  18  Fla.  736.    §§  86, 

102. 
Carrier,  Matter  of,  13  Bankr.  Reg.  208. 

§104 


Carroll    v.    Carroll,    16    How.    275„ 
§320. 

V.  Lessee  of  Olmsted,  16  Ohio, 
251.    §  194 

V.  Mo.  Pac.  R  R.  Co.  26  Am.  & 
Eng.  R  R  Cas.  268.    §  371. 

V.  State,  58  Ala.  396.    §  223. 
Carrow  v.  Bridge  Co.,  PhilL  L.  (N.  C.) 

118.    §194 
Carson  v.  Daltoru  59  Tex.  500.    §  298. 

v.  Love,  8Yerg.  215.    §111. 

V.  State,  69  Ala.  235.    §§  95,  354 
Carter  v.  Balfom-,  19  Ala,  814    §§  17, 
184 

V.  Burt,  12  Allen,  424    §§  144, 
470. 

V.  Hawley,    Wright   (Ohio),    74 
§142. 

V.  Peak,  138  Mass.  439.    §  264 

v.  State,  6  Cold.  537.    §  397. 
Caruthers  v.  Andrews,  2  Cold.  378. 

§124 
Carver  v.  Smith,  90  Ind.  222.    §  150. 
Carville  v.   Additon,    62    Me.    459. 

§115. 
Case  of  the  Marshalsea,  10  Coke,  73a. 

§300. 
Case  of  Swans,  7  Coke,  82.    §  305. 
Case  V.  KeUy,  133  U.  S.  21.    §  185. 

V.  Mayor,  etc.  30  Ala.  538.    §  296. 

V.  Serew,  46  Hun,  57.    §  302. 

V.  Storey,  L.  R  4  Ex.  319.    §  262L 

V.  Wndridge,  4  Ind.  51.    §  237. 
Casement  v.  Fulton,  5  Moore's  P.  C. 

141.    §  256. 
Casey  v.  Hamed,  5  Iowa,  1.    §  187. 
Cash  V.  State,  10  Humph.  111.  §§293, 

299. 
Casher  v.  Holmes,  2  B.  &  Ad.  593. 

§§  276,  277. 
Cass  V.  DiUon,  2  Ohio  St.  607.    §§  120; 

121,  122,  137,  151,  152. 
Cass  County  v.  Gillett,  100  U.  S.  585. 

§157. 
Cassity  v.  Storms,  1  Bush,  452.    §  164 
eastern  V.  Groom,  18  Q.  B.  490.    §  462. 
Castle's  Case,  Cro.  Jac.  644    §  325. 
Castle  V.  Burditt,  3  T.  R  623.    §§  112, 

253. 


OASES   CITED. 


XXVll 


Castner  v.  WaJrod,  83  Dl.  171.   §§  146, 

223. 
Caaton  v.  Brock,  14  S.  C.  104     §  232. 
Caswell  V.  Cook,  11  C.  B.  (N.  S.)  G37. 
§362. 

V.  Worth,  5  E.  &  B.  849.    §  202. 
Catawissa  R  R  Co.  v.  Ai'instrong,  53 

Pa.  St  282.    §371. 
Gate  V.  State,  3  Sneed,  120.    §§  138, 

143. 
Gates  V.  Knight,  3  T.  R  443.    §§  165, 

256,  396. 
Catesby's  Case,  6  Coke,  62.    §  253. 
Cathcart   v.    Robinson,   5  Pet  280. 

§§  184,  191. 
Catlin  V.  Hull,  21  Vt  153.    §§  315. 
240. 

V.  Wheeler,  49  Wis.  507.    §  396. 
Caulfield  v.  Hutlson,  3  CaL  389.    §  397. 

V.  Stevens,  28  Cai  118.    §  395. 
Cavanagh  v.  Boston,  139  Mass.  426. 

§387. 
C,  B.  &  Q.  R  R  Co.  V.  Iowa,  94  U.  S. 

155.     §  126. 
Cearf  OSS  v.  State,  43  Md.  406.    §§  219, 

234,  236,  239,  240,  241,  246. 
CecU   Bank   v.  Barry,    20  Md.  287. 

§§190,192. 
Cedar  Rapids,  etc.  R'y  Co.  v.  Carroll 

Co.  41  Iowa,  153.    §  167. 
Central  Branch  Union  P.  R  Co.  v. 

Atchison,  etc.  R  R  Co.  28  Kan. 

453.    §^5 176,  180. 
Centi'al  Bridge  v.  LoweU,  15  Gray, 

106.    §  473. 
Central  City  Horse  R'y  Co.  v.  Fort 

Clark  Horse  R'y  Co.  81 IIL  523. 

§888. 
Central  &  G.  R  Co.  v.  People,  5  Colo. 

39.    §§  80,  103. 
Central  Iowa  R  R  Co.  v.  Board  of 

Supervisors,  67  Iowa,  199.    §§  122, 

129,  138. 
Central  Plk,  R  Co.  v.  Hannaman,  33 

Ind.  484.     §§  93,  95. 
Central  R  R  Co.  v.  Gamble,  77  Ga. 


584.     §  298. 
V.  Hamilton,  71  Ga.  461. 
138,  286. 


§§185, 


Central  R  R  Co.  v.  Swmt,  73  C  a.  651. 

§14. 

Central  Trust  Co.  v.  Sheffield  &  B. 

Coal,  etc.  Co.  42  Fed.   Rep. 

106.     §  263. 

V.  Sloan,  65  Iowa,  655.   §§  125, 127. 

Chadwick  v.  Moore,  8  W.  &  S.  41-. 

§478. 
Chaffee's     Appeal,     56     Mich.    244 

§§  390,  432. 
Chaffe  V.  Aaron,  63  Miss.  29.    §  482. 
Chamberlain  v.  Chamberlain,  43  N.  Y. 
424     §§  145,  152. 
V.  EvansviUe,  77  Ind.  543.  §§  165, 

166. 
V.  Western  Transp.  Go.  44  N.  Y. 
305.    §442. 
Chambers   v.    Carson,    3  "VVliart  9. 
§  256. 
V.  Dickson,  3    Serg.  &   R    475. 

§322. 
V.  State,  25  Tex.  307.    §  136. 
Champion  v.  Kille,  15  N.  J.  Eq.  476. 

§297. 
Chance  v.  Adams,  1  Lord  Raym.  77. 

§§  196,  210, 
Chancellor  of  Oxford's  Case,  10  Coke^ 

57.    §194 
Chandler   v.    Hanna,    73   Ala.    390. 
§§  140,  399. 
V.  Nash,  5  Mick  409.    §  395. 
V.  VUett,  2  Saund-  120.    §§  434, 
426. 
Chaney  v.  State,  31  Ala.  342.    §§  206, 

483. 
Chapin  v.  Crusen,  31  Wis.  309.   §  22a 
V.  Curtenius,  15  IIL  427.    §  420. 
V.  Persse  &  Brooks  Paper  Works, 
30  Conn.  461.    §§  347,  461. 
Chapman   v.   Foster,    6  Allen,   136. 
§338. 
V.  Miller,  128  Mass.  269.    §  240. 
V.  MUvain,  5  Ex.  61.    §  145. 
V.  State,  16  Tex.  App.  76.    §  260. 
V.  Woodi-uflf,  34  Ga,  98.     §  277. 
Chapoton  v.  Detioit,  38,  Mich.   636. 

§138. 
Chapron  v.  Cassaday,  3  Humph.  661. 
§184 


xxvm 


CASES   CITED. 


Charles   River   Bridge    v.    Warren 

Bridge,  11  Pet  420.    §§  164,  206, 

289,  378. 
Ohaiies  St.  Ave.  Co.  v.  Merryman,  10 

Md.  536.     §  242. 
Claarless  v.  Lamberson,  1  Iowa,  435. 

§§  107,  422. 
Charleston  v.  County  Com'rs,  3  Met 

202.     §  388. 
Charlotte  v.  Chouteau,  33  Mo.  194 

§§  190,  192. 
Charter   v.    Greame,   13  Q.  B.  216. 

§448. 
Chai-tered  Mercantile  Bank,  etc.  v. 

WHson,   L.  R  3   Ex.  Div.  108. 

§265. 
Chase  v.  Ins.  Co.  9  Allen,  311.    §  184. 
Cheatham  v.  Briens,  3  Head,    553. 

§447. 
Chealy  v.  Brewer,  7  Mass.  259.    §  411. 
Cheever  v.  Wilson,  9  Wall  108.    §§  22, 

185,  293. 
Chegaray  v.  Mayor,   13  N.  Y.  220. 

§§  271,  272. 
Chenango  Bridge  Co.  v.  Binghamton 

Bridge  Co.  27  N.  Y.  87.    §  164 
Cherry  Overseers    v.  Marion  Over- 
seers, 96  Pa.  St  528.    §  454 
Chesapeake  &  O.  Canal  Co.  v.  Rail- 
road Co.  4  Gill  &  J.  1.    §§  234 

239. 
Chesapeake  &  Oliio  R.  R.  Co.  v.  Hoai-d, 

16  W.  Va.  276.    §  157. 
Chesnut   v.    Shane,    16    Ohio,    599. 

§§  308,  309,  316,  452,  483. 
Chester  Glass  Co.  v.  Dewey,  16  Mass. 

102.     §  385. 
Chew  V.  Calvert  1  Walk.  (Miss.)  54 

§19. 
Chew  Heong  v.  United  States,  112 

U.  S.  536.     §§  138,  407. 
Chicago  V.  Hasley,  25  BL  595.    §  429. 
V.  Vulcan  Iron  Works,  93  IlL  222. 
§115. 
Chicago,  etc.  Ry  Co.  v.  Chicago,  etc. 
R.  R  Co.  112  IlL  389.    §  388. 
V.  Chicago,  121  111.  176.     §  387. 
V.  Doyle,  60  Miss.  977.    §  13. 
V.  Dunn,  52  lU.  260.     §  207. 


Chicago,  etc.  R'y  Co.  v.  Hartshorn,  SO 
Fed.  Rep.  541.    §  167. 
V.  McGUnn,  114  U.  S.  542.    §  19. 
V.  People,  67  III  11.    §  349. 
v.  Smitli,  78  111.  96.    §  207. 
V.  Sturges,  74  Mich.  538.    §  371. 
V.  Wiltse,  116  111.  449.    §  387. 
Chicago  Packing  Co.  v.  Chicago,  88 

IlL  221.    §  473. 
Chicot  Co.  V.  Davies,  40  Ark.  200. 

§49. 
Childs   V.    Shower,    18    Iowa,    261. 
§§  137,  175,  180. 
V.  Smith,  55  Barb.  45.    §§  326, 
456. 
Chiles  V.   Drake,  2  Met  (Ky.)  150. 
§85. 
V.  Smith's  Heu^,  13  B.  Mon.  460. 

§§  112,  114 
V.  State,  2  Tex.  App.  37.    §  325. 
Chisholm  v.  Northern  Transportataon 

Co.  61  Barb.  363.    §  399. 
Chollar  IVIining  Co.  v.  Wilson,  66  Cal 

374     §  456. 
Chouteau  v.  Allen,  70  Mo.  290.  §  336. 

V.  Pierre,  9  Mo.  3.    §§  181,  295. 
Chi-istie  v.  Unwin,  3  Perry  &  Davi- 
son, 208.     §  391. 
Christopherson  v.  Lotinga,  33  L.  J. 
C.  P.  123 ;   15  C.  B.  (N.  S.)  809. 
§§  258,  420. 
Christy  v.  Board  of  Supervisors,  39 
CaL  3.    §  170. 
V.  Pridgeon,  4  WalL  196.    §  185. 
Church,  Matter  of,  28  Hun,  476.  §  183. 
Church  V.  Crocker,  3  Mass.  21.  §§  288, 
322. 
V.  Detroit  64  Mich.  571.    §  102. 
V.  Hubbart  2  Cranch,  237.  §§  190, 

192,  247. 
V.  Rhodes,  6  How.  Pr.  281.  §§  138, 

165. 
V.  Stadler,  16  Ind.  463.    §  222. 
Churchill    v.   Crease,    5    Bing.    177. 
§§  159,  216. 
V.  Merchants'  Bank,  19  Pick.  532. 
§253. 
Cicero,  etc.  Co.  v.  Craighead,  28  Ind. 
274    §  306. 


CASES    CITED. 


XXIX 


Cincinnati  College  v.  State,  19  Ohio, 

110.    §3G4. 
Cincinnati,  etc.  R.  R  Co.  v.  Carthage, 
3G  Oliio  St.  031.     §  472. 

V.  Commissioners,  1  Ohio  St  77. 
g§  67,  68,  75. 
Citizens'  Gas,  etc.  Co.  v.  Elwood,  114 

Ind,  332.     §  384. 
Citizens'  Gas  Light  Co.  v.  Alden,  44 

N.  J.  L.  648.     §  201. 
City  V.  R.  R   Co.   35  La.  Ann.   679. 
§482. 

T.     Schellinger,    15     Pliila.    50. 
§§  239,  241. 
City  Bank  v.  Huie,  1  Rob.  (La.)  236. 

§g  215,  240. 
City  Council  v.  Adams,  51  Ala.  449. 
§113. 

V.  Baptist  Chmxh,  4  Sti'ob.  306. 
§136. 

V.  Plank  R  Co.  31  Ala.  76.  §380. 

V.  Port  Royal,  74  Ga,  658.    §§  94, 
102. 
City    CouncU    of    IMontgomeiy    v. 

Wright,  72  Ala.  411.    §  120. 
City  of  Berne  v.  Bank  of  England, 

9  Yes.  347.     §  297. 
City  of  Buffalo,  Matter  of,  68  N.  Y. 

167.     §§  344,  388,  389. 
Clanton  v.  Barnes,  50  Ala,  260.  §  190. 
Clare  v.  State,  5  Iowa,  510.     §§  35, 
109,  300. 

V.  State,  68  Ind.  17.    §132.- 
Clarence  R'y  Co.  v.  Great  North  of 

Eng.  etc.  R'y  Co.  13  M.  &  W.  706. 

§344 
Clarion  Bank  v.  Gruber,  87  Pa.  St. 

468.    §  194. 
Clark's  Succession,  11  La.  Ann.  124. 

§218. 
Clark  V.  Brown,  18  Wend.  213.  §  399. 

V.  Bynura,  3  McCord,  298.    §  212. 

V.  Clark,  10  N.  H.  391.    §  482. 

V.  Crane,  5  Mich.  151.    §  455. 

V.  Davenport,     14     Iowa,     495. 
§§  365,  380. 

V.  Dewey,  5  Johns.  251.     §  371. 

V.  Dolter,  54  Pa.  St  215.     §  312. 

V.  EUis,  2  Blackf.  8.     §  172. 


Clark  V.  Ewing,  87  HI.  344.  §  112. 
V.  Fan-mgton,  11  Wis.  306.  §385. 
V.  Gaskarth,  8  Taunt  431.  §  269. 
V.  Hague,  2  E.  &  E.  281.  §  280. 
'f^  V.  Hardunan,  2  Leigh,  347.  §  425. 
V.  Holms,  1   Doug.  (Midi.)  390. 

§g  327,  391. 
V.  JanesvillclOWis.  136.   §§  110, 

120,  193,  198,  292. 
V.  Lamoreux.  70  Wis.  508.   §  459. 
V.  McCanu.  18  Hun,  13.    §  146. 
*~   V.  Martin,    3    Grant's    Cas.   393. 
§478. 
V.  Mayor,  etc.  29  Md.  283.    §  237. 
V.  Middletou,  19  Mo.  53.    §  336. 
V.  Mowyer,  5  :Micli.  462.    §  309. 
V.  Railroad  Co.  81  Me.  477.    §  238. 
V.  Richardson,   15  N.  J.  L.  347. 

§426. 
V.  Robinson,  88  HL  498.     §  459. 
V.  Smith,  13  Pet  195.     §  185. 
V.  Utica,  18  Barb.  451.     §  247. 
V.  Wasliington,    12    Wheat    40. 

§365. 
V.  Wilkie,  4  Strob.  259.    §  379. 
Clarke  v.  Bradlaugh,  L.  R  8  Q.  B. 
Div.  69.     §  257. 
V.  Brookfield,  81  Mo.  503.    §  345. 
V.  Gibbons,  83  N.  Y.  107.    §  146. 
V.  Ii-win,  5  Nev.  124    §  117. 
V.  Pratt,  20  Ala.  470.     g  12. 
V.  Rochester,  28  N.  Y.  605.    §§70, 

75. 
V.  State,  23  Miss.  261.    §§  139, 470. 
Clarkson  v.  R  R  Co.  12  N.  Y.  304 

§  207. 
Clawson  v.  Eichbaum,  2  Grant's  Cas. 
130.    g  110. 
V.  Primrose,  4  Del  Cli.  643.  §§  15, 

184 
V.  United  States,  114  U.   S.  477. 
§396. 
Clay  Covmty  v.  Society  for  Savings, 

104  U.  S.  579.    §  138. 
Clay  Co.   Sup'rs  v.   Chickasaw    Co. 

Sup'i^s,  64  Miss.  534.     §  155. 
Claydon  v.  Green,  L.  R.  3  C.  P.  521. 

ii  233. 
Clayton's  Case,  5  Coke,  1.    §  112. 


XXX 


CASES    CITED. 


Cleiu  T.  State,  33  Ind.  418.    §  124 
Clements  v.  Smith,  3  E.  &  E.  238. 

§420. 
Clementson  v.  Mason,  L.  R  10  C.  P. 
209.    §§239,246. 

v.  WilUams,  8  Crancli,  72.    §  368. 
Cleveland,  etc.  R  R  Co.  v.  Erie,  27 
Pa.  St  380.    §  380. 

V.  Eowan,  66  Pa.  St  393.    §  371. 
aeveland  &  P.  R  Co.  v.  Speer,  56  Pa. 

St  325.    §  378. 
Cline    V.    Greenwood,    10  Ore.  230. 

§331. 
COinton  v.  Draper,  14  Ind.  295.    §  87. 

V.    Englebrecht,    13   WalL    434. 
§312. 

V.  PhilHps,  7    T.  B.  Mon,    117. 
§454. 
Clinton  Water  Com'rs  v.  Dwight,  101 

N.  Y.  9.    §  88. 
Cliquot's  Champagne,  3  WalL   114. 

§361. 
Qosson  V.  Trenton,  48  N.  J.  L.  438. 

§128. 
Clow  V.  Harper,  L.  R  3  Ex,  Div.  198. 

§310. 
Clu&  V.  Ins.  Co.  13  Allen,  308.    §  184 
Coalheavers'  Case,  1  Leach  C.  C.  64 

§334 
Coates  V.  Mackey,  56  Md.  416.    §  294 
Coats  v.  Hill,  41  Ark.  149.    §§  138, 

143,  151,  152. 
Coatswoi-th   V.  Barr,   11    Mich.   199. 

§254 
Cobb  V.  Bord,  40  Minn.  479.    §§  122, 

128. 
Cobum  V.  Dodd,  14  Ind.  347.    §§  181, 
294 

V.  Harvey,  18  Wis.  147.    §  184. 
Cochran  v.  Baker,  60  Miss.  282.    §  483. 

V.  Library  Co.  6  Phila,  492.    §  210. 

V.  Taylor,  13  Ohio  St  382.     §§  167, 
225. 
Cock  V.  Bunn,  6  John.  326.    §§  111, 

113,  115. 
Cockrell  v.  Gurley,  26  Ala.  405.   §  12. 
Coe   V.  Lawrence,   1    E.  &   B.  516. 
§  351. 

V.  Schultz,  47  Barb.  64.     §  68. 


Coffin  V.  Rich,  45  Me.  507.    §§  163, 
167,  234  236,  246,  407. 

V.  State,  7  Ind.  157.    §  206. 
Cofifman  v.  Daveny,  2  How.  (Miss.; 

854    §  454 
CoghiH  V.  State,  37  Ind.  111.    §§  142, 

143. 
Cohen  v.  Barrett,  5  CaL  195.    §  210. 
Cohens  v.  Virginia,  6  Wheat  380. 

§§  21,  307. 
Cohn  V.  Neeves,  40  Wis.  393.    §§  208, 

355,  371. 
Cohoes  Co.  V.   Goss,   13  Barb.    137. 

§454 
Coke  V.  Bobbins,  4  Halst  384    §  202. 
Colbran  v.  Bamess,  11  C.  B.  (N.  S.) 

244    §240. 
Colbmn  V.  Swett,  1  Met  232.    §  833. 
Colby  V.  Dennis,  36  Me.  9.    §§164, 
167. 

V.  Knapp,  13  N.  H.  175.    §  59. 
Colden  v.  Eldred,  15  Jolxo.  220.  §  399. 
Cole  V.  Aune,  40  Minn,  80.    §  393. 

V.  Commissioners,    78   Me.  532. 
§169. 

V,  Coulton,  2  E.  &  E.  695.    §  143. 

V.  Groves,  134  Mass.  471.    §  358. 

V,  HaU,  103  HI  30.    §  92. 

V.  PeiTy,  8  Cow.  214     §  207. 

V.    Supervisors,    11    Iowa,    552^ 
§147. 

V.  Thayer,  8  Cow.  249.    §  204 

V,  AVhite,  32  Ark,  45.     §  333. 
Colehan  v.  Cooke,  WUles,  395.  §§  215i 

213. 
Coleman  v.  Ballandi,  22  ]VIinn,  144. 
§  476, 

V.  Davidson's    Academy,    Cooke- 
(Tenn.),  258.    §288. 

V.  Dobbins,  8  Ind.  156.    §§  183^ 
300. 

V.  Hohnes,  44  Ala.  124.    §  368. 

V.  Newby,  7  Kan.  88.    §  68. 
Colgate  V.  Penn,  Co.  102  N.  Y.  I'^T. 

§207. 
Colley  V.  London,  etc.  Co.,  L.  R.  5  Ex. 

Div.  277.    §  204 
Collin  V.  Knoblock,  25  La,  Ann.  2()i. 

§237. 


CASES    CITED. 


XXXI 


•Obllins  V.  Carman,  5  Md.  503.   §§  332, 
324,  407. 
V.  Chase,  71  Me.  434.    §  138. 
V.  East    Term.  etc.  R  R   Co.  9 

Heisk.  841.    §§  476,  480. 
V.  Henderson,  11  Bush,  74    §  88. 
V.  Warren,  63  Tex.  311.    §  167. 
V.  Welch,  L.  R  5  C.  R  Div.  27. 
§§  219,  248. 
Collier  v.  Early,  54  Ind  559.    §§  375, 

376. 
Colt  V.  Eves,  12  Conn.  243,    §  448. 
Columbia   T.   Co.   v.    Haywood,    10 

Wend  422.    §§  111,  112,  113. 
Colmnbus  Ins.  Co.  v.  Walsh,  18  Mo. 

229.     §  836. 
ColweU  V.  Chamberlin,  43  N.  J.  K 

387.    §§  131,  132,  170. 
Combe  v.  Pitt,  3  Burr.  1423.    §  110. 
Comer   v.    Folsom,    13    Minn.    219. 

§206. 
Commercial   Bank   v.   Chambers,  8 
Sm.  &  M.  9.     §  220. 
V.  Foster,  5  La.  Ann.  516.  §§  218, 

240,  241,  246,  428. 
V.  Ives,  2  Hill,  355.     §  114. 
V.  Markham,    3    La,    Ann.    698. 

§482. 
V.  Sparrow,  2  Denio,  97.    §§  181, 
294 
Commercial    Bank    of    Natchez   v. 
Chambers,  8  Sm.  &  M.  9.   §§  138, 
140,  152. 
Commissioners,  In  re,  49  N.  J.  L.  488. 

§103. 
Commissioners  v.  Andrews,  18  Ohio 
St  64    §  379. 
V.  Baker,  80  Ind.  374    §§  86,  87, 

102. 
V.  BaUard,  69  N.  C.  18.    §  331. 
V.  Hai-rison,  L.  R  7  H.  of  L.  9. 

§310. 
V.  Higgrnbotham,   17    Kan.    75. 

§51. 
V.  Keith,  2  Pa.  St  218.     §  223. 
V.  Mighels,  7  Ohio  St  109.    §  380. 
V.  Northern  Bank,  1  Met  (Ky.) 

174     §164 
V.  Silvers,  22  Ind  491.    §  331. 


Commissioners  v.  Spitler,  13  Ind  235. 

§298. 
Commissioners  of  Central  Park,  Mat- 
ter of,  50  N.  y.  493.     §  155. 
Commissioners  of  Knox  Co.  v.  Ma- 
comb, 19  Ohio  St  320.    §  145. 
Commissioners  of  Lunatic  Asylums, 
In  re,  8  Irish  Eq.  Rep.  366.  §  257. 
Commissionei-s  of  Public  Schools  v. 
County  Commissioners,  20  Md 
449.     i^  462. 
Commissionei-s   of  Sedgwick  Co.  v. 

BaUey,  13  Kan.  607.    t;§  79,  80. 
Common    Coimcil    of   Albany,    Ex 

parte,  3  Cow.  358.    §  454 
Commonwealth  v.  Alger,  7  Cush.  53. 

§§  215,  239. 
v.  BaUey,  13  Allen,  541.    §§  162, 

322. 
V.  Beatty,  1  Watts,  382.    §  165. 
V.  Bennett,  108  Mass.  27.    §§  75, 

225. 
V.  Bradley,  16  Gray,  241.    §§  206, 

482. 
V.  Breed,  4  Pick.  460.    §  194 
V.   Cain,   14  Bush,  525.     §§  157, 

166. 
V.    Cambridge,     20    Pick.    267. 

§§  215,  322. 
V.  Chambre,  4  DalL  143.    §  253. 
V.  ChurchiU,  2  Met  118.    §§  147, 

108,  184 
V.  Commissioners,  etc.  37  Pa.  St 

237.     §  397. 
V.  Commissioners  of  Allegheny 

Co.  40  Pa.  St  348.     §  145. 
V.  Conyngham,    66    Pa.    St    99. 

§§  215,  241,  245,  341. 
V.  Cooley,   10  Pick.   37.    §§  142, 

154 
V.  Coombs,  2  Mass.  489.    §§  386, 

388. 
V.  Costley,  118  Mass.  1.    §  307. 
V.  Cotton,  14  Pliila.  667.    §  157. 
V.  Council  of  Monti'ose,  52  Pa.  St 

391.     §  240. 
V.  Cromley,  1  Aslmi.  179.     §  154. 
V.  Cullen,  13  Pa,  St  133.     §  473. 
V.  Doi-sey,  103  Mass.  412.    §  469. 


XXXll 


CASES   CITED. 


Commonwealth  t.  Duane,  1    Biim. 

601.    §§11,215,239. 
V.  Edwards,  4  Gray,  1.     §  225. 
V.  Erie,  etc.  R  R  Co.  27  Pa.  St 

339.    §378. 
T.  Fisher,    17  Mass.  46.    §§  347, 

349. 
V.  Gaines,  2  Va.  Cas.  172.    §§  210, 

332. 
V.  Gardner,  11  Gray,  438.    §§  142, 

143. 
V.  GetcheU,  16  Pick.  452.     §  166. 
V.  GHtinan,  64  Pa.  St.  100.   §§  254, 

351. 
V.  Green,  17  Mass.  515.     §  12. 
V.  Green,  58  Pa.  St.  226.    §§  88, 

89,  95. 
V.  Griffin,  105  Mass.  185.    §§  252, 

285. 
Y.  HaU,   97  Mass.    570.    §§   468, 

482. 
V.  Hall,  128  Mass.  410.    §  243. 
V.  Harris,  13  Allen,  534.    §  260. 
V.  Hartnett,  3  Gray,  450.     §  333. 
V.  Hewitt,  2  H.  &  M.  181.     §  463. 
V.  Hitchings,  5  Gray,  482.    §§  169, 

176,  331. 
V.  Hudson,  11  Gray,  64.    §  396. 
V.  Humphi-ies,     7     Mass.     242. 

§200. 
V.  Intoxicating  Liquors,  108  Mass. 

19.    §  240. 
V.  Johnson,  42  Pa,  St.  448.     §  10. 
V.  KeUilier,  12  Allen,  480.     §§  143, 

154. 
V.  Keniston,  5  Pick.  420.     §§  208, 

349,  353. 
V.  Kimball,  21  Pick.  373.    §§  142, 

165,  166,  225,  332. 
V.  Knapp,  9  Pick.  496.     §§  139, 

290. 
V.  Knowlton,  2  Mass.  534.     §§  15, 

16,  17,  184. 
V.  Leach,  1  Mass.  60.    §  15. 
V.  Leech,  24  Pa  St  55.    §  168. 
V.  Leech,  44  Pa.  St  332.     §  384. 
V.  Lockwood,     109     Mass.    322. 

§307. 
V.  Logan,  12  Gray,  186.    §  206. 


Commonwealth   v.   Loring,  8  Pick, 

370.    §§  218,  350. 
V.  McDonough,    13    Allen,    581. 

§142. 
V.  McKenney,  14  Gray,  1.    §  143. 
V.  McWilliams,    11    Pa.   St    61. 

§67. 
V.  MarshaU,  11  Pick.  350.     §§  142^ 

165,  166,  225. 
V.  Marshall,  69  Pa.  St  332.    §  260. 
V.  Martm,  17  Mass.  362.     §§  208,. 

288,  357. 
V.  Martm,  107  Pa.  St  185.     §§35,. 

86,  91,  102,  103. 
V.  Mason,   82  Ky.   256.     §§  154, 

155,  156. 
V.  Miller,  5  Dana,  320.     §§  311, 

314. 
V.  Monongahela  Nav.  Co.  66  Pa, 

St  81.     §  263. 
V.  Mott  21  Pick.  492.     §  166. 
V.  Munson.  127  Mass.  459.    §  322. 
V.  Meiser,  44  Pa.  St  341.    §  384 
V.  Painter,  10  Pa.  St  214    §  75. 
V.  Parker,  2  Pick.  550.     §  307. 
V.  Pattee,  12  Cush.  501.    §  166. 
V.  Patten,  88  Pa.  St  258.    §  129. 
V.  Peckham,  2  Gray,  514     §  303. 
V.  Peyram,  1  Leigh,  569.     §  143. 
V.  Perryman,  2  Leigh,  717.  §  357. 
V.  PhiUips,  11  Pick.  28.    §  469. 
V.  Pointer,  5  Bush,  301.     §  225. 
V.  Rainey,  4  W.  &  S.  186.     §  256. 
V.  Reiter,  78  Pa.  St  161.    §  333. 
V.  Roxbury,  9  Gray,  451.    §§  378,. 

386,  390. 
V.  Sherman,  85  Ky.  686.     §  166. 
V.  Shopp,   1  Woodw.   Dec.    123. 

§  232. 
V.  Shortridge,  3  J.  J.  Marsh.  638. 

§253. 
V.  Slack,  19  Pick.  304    §  218. 
V.  Slifer,  53  Pa.  St  71.    §§  210, 

211. 
V.  Snelling.  4  Binn.  379.     §  349. 
V.  Snowden,  1  Brewst  218.  §  297. 
V.  Sprmgtield.  7  Mass.  12.     §  193. 
V.  Standard  Oil  Co.  101  Pa.  St 

119.     §§  165,  227. 


CASKS   CITED. 


XXXUl 


Commonwealth  v.  Stevens,  10  Pick. 
247.    §388. 

V.  Sylvester,  13  Allen,  247.  §  370. 

V.  Tewksbuiy,  11  Met  55.     §  36. 

V.  Turner,  1  Cush.  493.     §  380. 

V.  Watts,  84  Ky.  537.      g§  137, 
154. 

V.  Welch,  2  Dana,  330.     §§  166, 
480. 

V.  WeUer,  14  Bush,  218.    §  75. 

V.  Wolbert,  6  Binn.  292.     §  453. 

T.  Worcester,  3  Pick.  473.     §  193. 

V.  Wyatt,  6  Eand.  694.    §  143. 

V.  Wyman,  12  Cush.  237.     §  143. 
Ccaipany  of  Cutlers  v.  Ruslin,  Skin- 
ner, 363.     §  166. 
Compton  V.  Pierson,  28  N.  J.  Eq.  229. 

§400. 
Comstock  V.   Bechtel,  63    Wis.   656. 
§422. 

V,  Judge,  etc.  39  mch.  195.    §  132. 
Cone  V.  Bowles,  1  Salk.  205.     §  371. 
Conger  v.   Barker,    11    Ohio    St.   1. 
§256. 

V.  Weaver,  6  CaL  548.     §  298. 
Conkey  v.  Hart,  14  N.  Y.  22.    §  478. 
Conkhng  v.  Parker,  10  Ohio  St  28. 

§398. 
Conley  v.  Columbus,  etc.  R  R  Co.  44 
Tex  579.    §  194. 

V.  Sims,  71  Ga.  161.     §  336. 

V.  Supervisors,    2    W.    Va,    416. 
§157. 
Connecting  Ry.  Co.  v.  Union  Ry.  Co. 

108  lU.  265.     §  388. 
Connecticut  etc.  Ins.  Co.  v.  Albert, 

39  Mo.  181.    §  211. 
Conner,  Ex  parte,  51  Ga.  571.    §§  94, 

98. 
Coimer  v.  Mayor,  etc.  5  N.  Y.  285. 

§§  88,  120. 
Connor  v.  Green  Pond,  etc.  R  R  Co. 
23  S.  C.  427.    §  96. 

V,  Carp  River  Iron  Co.  54  Mich. 
168.     §§  138,  152. 
Connors  v.  Gorey,  22  Wis.  518.     §  397. 
Conolly  V.  RUey,  25  Md.  402.    §  184. 
Conover  v.  Wright  6  N.  J.  Eq.  613. 

§426. 


Conrad  v.  Nail,  24  Jlich.  275.    §  133. 
Conse(iua  v.  WiUings,  1  Pet  C.  C.  225. 

§§  190,  295. 
Conservators    of    River    Thames   "v. 

HaU,  L.  R  3  C.  P.  415.    §  157. 
ConsoUdated,  etc.  Co.  v.  Cashow,  49 

Md.  59.    §§  190,  192. 
Constantino  v.   Constantine,  6  Ves. 
100.    §138. 

V.  Van  Winkle,  6  Hill,  177.  §§  202, 
212,  399,  483. 
Continental  Imp.  Co.  v.  Phelps,  47 

Mich.  299.    §§  94,  309. 
Converse  v.  Buitows,  2   Minn.  229. 
§§  207,  440. 

V.  United  States,  21  How.   463. 
§§  240,  283. 
Conwell  V.  Hagerstown  Canal  Co,  2 

Ind.  588.    §§  204,  325. 
Cook  V.  Clark,  10  Bing.  21.     §  442. 

V.  Com'rs,  6  McLean,  112.    §  331, 

V.  Gray,  6  Ind.  335.     §  112. 

V,  Meyer,  73  Ala  580.  §§  138,400. 

V.  Moffat  5  How.  295.    §  197. 

V.  Moore,  95  N.  C,  1.    §  111, 

V,  Mutual   Ins,   Co,  53   Ala.  37. 
§206, 

V.  Oliver,  1  Woods,  437.    §  20. 

V,  Sexton,  79  N.  C.  305.     §  206. 

V,  Tower,  1  Taimt  372,    §  462, 
Cook  County  Nat  Bank  v.  United 

States,  107  U.  S.  445.    §  154. 
Cooley    V.    Granville,   10    Cusli.    56. 

§380. 
CooUdge  V.  Williams,  4  Mass.   140. 

§§  366,  398. 
Coomber  v.  Berks,  L.  R  9  Q.  B.  Div. 

33.     §  210. 
Cooper,  Matter  of,  15  John.  532.   §  440. 
Cooper  V.  Ciu-tis,  30  Me.  488.    §  107. 

V.  Reaney,  4  Minn.  528,     §  184. 
Coosa  R  R  Co.  v,  Barclay,  30  Ala. 

120,     §§  10,  480,  481,  482. 
Cope  V.  Dohei-ty,  2  De  G.  &  J.  614. 
§§  218.  219,  239. 

V.   Rowlands,   2  M    &  W,   149. 
§§  335,  336. 

V.  Thames  Haven,  etc,  Co.  3  Ex. 
Ul.    §  456, 


xxxiv 


CASES  CITED. 


Copeland,  Ex  parte,  De  G.  M.  &  G. 

914.    §288. 
Copeman  v.  Gallant,  1  P.  Wms.  314 

§212. 
Copland  v.  Davies,  L.  R  5  H.  L.  Gas. 
358.     §§212,213. 
V.  Powell,  1  Bmg.  369.    §  277. 
Copley  V.  Sanford,  2  La,  Ann.  335. 

§297. 
Corbett  v.  Bradley,  7  Nev.  106.  §  449. 

V.  Nutt,  10  WalL  464    §  420. 
CordeU  v.  State,  22  Ind.  1.    §§  133, 

150. 
Core  V.  James,  L.  R.  7  Q.  B.  135. 

§§  355,  429. 
Corliss  V.  Corliss,  8  Vt  373.    §  451. 
Cornell  V.  Moulton,  3  Denio,  12.   §  111. 

V.  Moulton,  5  Denio,  12.    §  114 
Coming  v.  Greene,  23  Barb.  33.    §  75. 
V.  McCullough,  1  N.  Y.  47.   §  474 
Cornwall   v.    Todd,    38   Conn.    443. 

§363. 
Corporation    v.    Scott,    1    Cai    544 

§378. 
Cortis  V.  Kent  Water-works,  7  B.  & 

C.  314    §§219,421. 
Corwin    v.     Men-itt,     3    Barb.    341. 

§§  400,  454 
Corg  V.  Cai-ter,  48  Ind.  227.    §  119. 
Costa  Rica  v.  Erlanger,  L,  R.  3  Ch. 

Div.  69.     §  482. 
Cota  V.  Ross,  66  Me.  161.    §  383. 
Cotton   V.    Brien,  6    Rob.  (La.)  115. 
§  229. 
V.    James,    Mood.    &    Mai  278. 

§265. 
V.  Leon  Comity,  6  Fla.  610.   §75. 
Cotton  Planter,  The,  1  Paine,  23.  §  104 
CottreU  V.  State,  9  Neb.  128.     §  51. 
Couch  V.  Jeffries,  4  Burr.  2460.  §  464 

V.  McKee,  6  Ark.  484    §  463. 
Countess   of    Rothes    v.    Kirkcaldy 
Water-works,  L.  R  7  App.  Cas. 
702.    §§  236,  270,  325,  328. 
County  Commissioners  v.  Commis- 
sioners, 51  Md.  465.    §  120. 
V.  FrankUn  R.  R  Co.  34  Md.  163. 

§78. 
V.  Meekins,  50  Md.  39.    §  78. 


Coxmty  of  Hardin  v.  McFarlan,  83 

IlL  138.    §  390. 
Coimty  of  York  v.  Grafton,  100  Pa.  St 

619.    §212. 
Coimty  Seat  Linn  Co.  15  Kan.  500. 

§255. 
Coiu-se  V.  Stead,  4  DalL  27,  n-  §§  185, 

293. 
Courtauld  v.  Legh,  L.  R  4  Ex.  126. 

§255. 
Coutieri  v.  Mayor,  etc.  44  N.  J.  L.  58. 
§§  87,  128. 
V.  New  Brunswick,  44  N.  J.  L. 
363.     §§  87,  90,  128. 
Covington  v.  East  St  Loviis,  78  111. 
548.    §157. 
V.  McMickle,  18   B.    Mon.    269. 

§§  212,  215,  219,  246,  428. 
V.  Voskotter,  80  Ky.  219.    §§  94, 
120,  193. 
Covington  Drawbridge  v.  Shepherd, 

20  How.  227.  §§  185, 193,  293. 
Cowley  V.  Rushville,  60  Ind.  327.  §  132. 
Cox  V.  Robinson,  2  Stew.  &  Port  96. 
§190. 
V.  State,  8  Tex.  App.  254  §  198. 
Coxe  V.  Martin,  44  Pa.  St  332.  §  478. 
Coxson  V.  Doland,  2  Daly,  66.   §§  255, 

256,  259,  267. 
Coy  V.  Coy,  15  IVIinn.  119.    §  324 
Crafts  V.  Clark,  38  Iowa,  237.    §  184 
Cragin    v.    Lamkin,    7    Allen,    395. 

§§  191,  192. 
Craig  v.  Fkst  Presb.  Church,  88  Pa. 

St  42.    §  101. 
Crake  v.  Crake,  18  Ind.  156.    §  184 
V.  PoweU,  2  E.  &  B.  210.    §  462. 
Crane  v.  Ailing,  2  Green  (N.  J.),  593. 
§436. 
V.  Hardy,  1  Mich.  56.    §  184 
V.  McGinnis,   1    Gill    &  J.  463. 

§10. 
V.  Reeder,  22  Mich.  322.    §§  157, 
158,  217. 
Crawford  v.  Spooner,  6  Moore's  P.  C 
9.    §  431. 
V.  Tyson,  46  Ala.  299.    §  283. 
Crawf ordsville,  etc.  T.  Co.  v.  Fletcher, 
104  Ind.  97.     §§  93,  95,  240,  300. 


CASES   CITED. 


XXXV 


CrawhaJl's  Trust,    In    re,  8    De  G. 

Macii.  &  Gord.  480.     §  253. 
Creighton,  In  re,  12  Neb.  280.     §  396. 

V.  Pragg,  21  Cal.  115.     §  164. 
Cresoe  v.  Laidley,  2  Binn.  279.    §  432. 
Crespigny  v.  Wittenoom,  4  T.  R.  790. 

§§  210,  212,  246. 
Cressey  v.  Parks,  57  Me.  387.    §§  113, 

115. 
Cressy  v.  Tatom,  9  Ore.  542.     §  184. 
Creswell  v.  Green,  14  East,  537.  §115. 
Crigler  V.  Alexander,  33  Gratt  674. 

§§  463,  464. 
Ci-isp  V.  Bunbury,  8  Bing.  894  §§  165, 

396. 
Crispin  v.   Doglioni,  3  S.   &  T.  96. 

§13. 
Crittenden  v.   Wilson,   2  Cow.    165. 

§§  194,  202. 
Crocker   v.    Crane,    21    Wend.  211. 

§§  234,  246. 
Cromelien  v.  Brink,  29  Pa.  St  522. 

§§  111,  114. 
Crone  t.  State,  49  Ind.  538.     §  215. 
Crooke  v.   Brookling,   2  Vern.   107. 

§253. 
Crosby  v.  Bennett,  7  Met  17.    g  325. 

V.  Brown,  60  Bai-b.  548.     §  363. 

V.  Hawiiiorn,  25  Ala.  221.  §§  349, 
356. 

V.  Huston,  1  Tex.  237.    §  429. 

V.  Patch,    18    CaL  438.    §§  147, 
327. 
Crosier   v.    Tomlinson,    2    Mod.  71. 

§§  424,  426. 
Cross  V.  Harrison,  16  How.  196.   §  104 

V.  McMacken,     17     :Mich-     511. 
§393. 

V.  Pinckneyville  JMill  Co.  17  III 
54     §  456. 
Crossman  v.  Grossman,  33  Ala.  486. 

§482. 
CrosweU  v.  Crane,  7  Barb.  191.  §  256. 
Crow  Dog,  Ex  parte,  109  U.  S.  556. 

§§  138,  157,  162. 
Crowder  v.  Stewart,  L.  R,  16  CIl  Div. 

370.     §  212. 
Croxall   V.    Shererd,    5    Wall    268. 

§§  194,  390. 
c 


Crozier  v.  Hodges,  3  La.  357.     tj  184. 

Cruger  v.  Cniger,  5  Barb.  225.    ^  247. 

V.    Dougherty,     43    N.    Y.    107. 

g.^  365,  457. 

CucuUu  V.  Louisiana  Ins.  Co.  5  Mart. 

(N.  S.)  (La.)  613.    §  189. 
Cull  T.  Austin,   L.   R   7  C.   P.  234 

§§  247,  258. 
Cullerton  t.  Mead,  22  Cal  95.  §§  207, 

436. 
Culver  V.  Third  Nat   Bank,  64  111. 
528.    §  154 
V.  Woodi-uff  Co.  5  DilL  392.  §  482. 
Cumberland  Co.  v.  Boyd,  113  Pa.  St 

52.     §  300. 
Cvmiberland,  etc.  Canal  v.  Hitchings, 

57  Me.  146.     §  358. 
Gumming  v.  Frj-er,  Dudley  (Ga.),  182. 

§§  360,  444 
Cummings  v.  Akron  Cement  Co.  6 
BlatcM.  509.     §  232. 
V.  Chandler,  26  Me.  453.     §  165. 
V.  Coleman,    7     Rich.    Eq.    509. 

§254 
T.  Missouri,  4  WaU.  326.     §§  465, 
467. 
Cummins  v.  Garretson,  15  Ark.  135. 
§400. 
V.  State,  12  Tex.  App.  121.    §§  12, 
190. 
Cundell  v.    Dawson,    4    C.    B.    376. 

§336. 
Cimningham  t.  Hanney,  12  ILL  Ajip. 
437.     §  400. 
V.  Mahan,  112  Mass.  58.    §  115. 
V.  State,  2  Speers,  246.    §  246. 
Curlewis  v.  Mornington,  7  EL  &  R 

283.     §  424 
Curran  v.   Owens,   15   W.   Va.   208. 
§162. 
V.  Shattuck,  24  CaL  427.    §  387. 
Currier  v.  Marietta,  etc.  R  R  Co.  11 

Ohio  St  228.     §  378. 
Curtis  V.  Embery,  L.  R  7  Ex.  369. 
§256. 
V.  Gill.  34  Conn.  49.     §§  141,  204. 
V.  Leavitt.  17  Barb.  309.     §  325. 
v.  Leavitt  15    N.  Y.  1.     §§  139, 
163,  169. 


XXXVl 


CASES    CITED. 


Cui-tis    V.  McCvilIough,  3  Nev.  202. 
§  339. 

V.  March,    4   Jur.    (N.  S.)  1112. 
§302. 

V.  Martin,  3  How.  106.     §  254. 
Cusliiug    V.    Worrick,   9  Gray,   382. 

§§  223,  232. 
Cusic  V.  Douglas,  3  Kan.  123.     §  476. 
Custer  V.  Yellowstone  Co.  6  Mont  39, 

§333. 
Custin  V.  City  of  Viroqua,  67  Wis. 

314.    §§240,260. 
Cutler  V.  Supervisors,  56  Miss.  115. 

§  483. 
CutUp  V.  SlieriiT,  3  W.  Va,  588.     §  97. 
Cutter  V.    Carutliers,    48    CaL    178. 

§306. 
Cutts  V.  Hardee,  38  Ga.  350.    §§  10, 

331,  476,  478. 

Daggett  V.  State,  4  Conn.  60.  §  271. 
Daines  v.  Heath,  3  C.  B.  941.  §  362. 
Dakins  v.  Wagner,  3  DowL  P.  C.  535. 

^  112. 
Dalby  v.  Wolf,  14  Iowa,  228.    §  75. 
Dale  V.  Irwin,  78  IlL  170.     §  459. 
D'Allex  V.  Jones,  3  Jur.  (N.  S.)  979. 

§  335. 
Dahymple    v.    Dalr3Tnple,  3  Hagg. 

Consist.  81.     §  190. 
Dalton  V.  Mui-phy,  30  Miss.  59.    §454. 
Daly  V.  James,  8  Wheat.  535.    §  187. 

V.  State,  13  Lea.  228.  §§  119, 124 
Dame's  Appeal,  63  Pa.  St.  417.  §  358. 
Dane  v.  McArthur,  57  Ala.  454.  §§  41, 

49. 
Danforth  v.  Smith,  83  Vt  347.     §  164. 

V.    Woodward,     10    Pick.     433. 
§§  373,  433. 
Daniels  v.  Moses,  13  S.  C.  130.    §  488. 
Danks  v.  Quackenbush,  3  Denio,  594. 
§476. 

V.    Quackenbush,    1  N.  Y.   139. 
'  §  207. 
Dano  V.   Railroad  Co.   37  Ark.  564 

§346. 
Danvers    v.    Boston,    10    Pick.   513. 

§366. 
Danville  v.  Pace,  35  Gratt  1.    §  480. 


Darby  v.  Wilmington,  76  N.  C.  133. 

§174 
Dariirig,  Ex  parte,  16  Nev.  98.    §  10. 
Darling  v.  Boescli,  67  Iowa,  702.  §  58. 

v.  Rodgers,  7  Kan.  592.    §  122. 
Darmstaetter  v.  ]\Ioloney,  45  IVIich. 

621.    §§  257,  390. 
Darragh    v.    McKim,    2    Hun,    337. 

§169. 
Darrow  v.  People,  8  Colo.  417.    §  137. 
Dartmouth  CoUege  v.  Woodward,  4 

Wheat.  518.     §§  381,  473,  473. 
Dash  V.  Van  Kleeck,  7   John.  508. 
§§  3, 10,  201,  206, 406,  463, 464, 480. 
DashieU  v.  Mayor,  etc.  of  Baltimore, 

45  Md.  615.     §§  165,  167. 
Daubman  v.  Smith,  47  N.  J.  L.  200. 

§§  88,  93,  98,  103. 
Davenport  v.  Barnes,  3  N.  J.  L.  211. 
§§  207,  410. 
V.  Kleiusclunidt,    6    Mont    503. 

§§  378,  384 
V.  Raih-oad    Co.    37    Iowa,  634 
§107. 
Davey  v.  Bm-Ungton,  etc.  R  E.  Co. 

31  Iowa,  553.     §  215. 
David  V.  ^tna  Ins.  Co.  9  Iowa,  45. 
§342. 
V.  Southwestern  R.  R  Co.  41  Ga. 
223.    §  371. 
Davidson    v.    Allen,    36   Lliss.    419. 
§§  314,  318. 
V.    Carson,    1    Wash.    T'y,    307. 

§283. 
V.   Clayland,   1    Har.  &  J.  546. 

§210. 
V.  Kulm,  1  Disney,  405.    §  452. 
V.  Moorman,  3  Heisk.  575.    §  26. 
V.   New    Orleans,   96    U.  S.    97. 

§480. 
V.  Sharpe,  6  Ind.  14    §  191. 
Davies  v.  Creighton,  33  Gratt  696. 
§138. 
V.  Harvey,  L.   R  9  Q.  B.  433. 
§143. 
Daviess  v.  Fairbairn,  3    How.  636. 

§§  141,  154,  157,  204 
Davis,  Ex  parte,  21  Fed.  Rep.  396. 
§§  135,  147. 


CASES   CITED. 


XXXVU 


Davis  V.  Bank  of  Fulton,  31  Ga.  09. 

§96. 
V.  Bowling,  19  Mo.  651.     §  297. 
V.  Branch    Bank,    13    Ala.    463. 

§483. 
V.  Carew,  1  Rich.  375.     §  154. 
V.  Clark,  106  Pa.  St.  377.    §  139. 
V.  Commonwealth,  17  Gratt.  617. 

§390. 
V.  Cur'Jng,  8  Q.  B.  386.    §  343. 
V  Delpit,  35  Miss.  445.  §§  331,  403. 
T,  Tarnes,  36  Tex.  396.     §  390. 
V.  Gaines,  48  Ark.  370.    §  365. 
V.  Gray,  16  Wall  303.     §  473. 
V.  Hmnphrey,     33     Iowa,     137. 

§433. 
V.  Jacquin,  5  Harr.  &  J.  100.  §  13. 
V.  Justice,  31  Ohio  St.  :r9.   §  376. 
V.  Lumpkin,  57  Miss.  506.    §  464. 
V.  Mason,  1  Pet.  503.    §  187. 
V.  Minor,    1    How.    (Itliss.)    183. 

§§  163,  479,  480. 
V.  Rogers,  14  Ind.  434.     §  184. 
V.  Standish,  26  Him,  608.     §§  374, 


375. 


78,  81,  84, 


V.  State,  7  Md.  160, 

103,  103,  131,  170. 
V.  State,  3  Lea,  376.    §  134. 
V.  State  Bank,  7  Ind.  316.     §  483. 
V.  Van    Arsdale,    59    Miss.    367. 

§483. 
V.  Village  of  Menasha,  31  Wis.  491. 

§10. 
V.  Woolnough,     9     Iowa,     104. 

§§  129, 130. 
V.  Wood,  7  Mo.  165.    §  63. 
Davison  v.  Farmer,  6  Ex.  343.   §§  145, 
153. 
V.  GUI,  lEa.st,64.    §204. 
V.  Johounot,  7  Met  388.    §  194. 
Davys  v.   Douglas,  4  H.  &  N.  180. 

§263. 
Daw  V.  Metropolitan  Board,  13  C.  B. 

(N.  S.)  161.     §§  140,  304. 
Dawson's    Appeal,   15    Pa.    St.  480. 

§454 
Dawson  v.  Dawson,  33  Mo.  App.  169. 
§§  347,  255. 
v.  Horan,  51  Barb.  459.    §  153. 


Day  v.  McGinnis,  1  Ileisk.  310.  §^  104, 
108. 
v.  Munson,  14  Ohio  St.  488.  §  314. 
Dayton  v.  jMcIntj're,  5  How.  Pr.  117. 

§111. 
Dean,  Ex  parte,  2  Cow.  605.    §  114 
Dean  v.   Borchsenius,   30  Wis.   236. 
§§  339,  307. 
V.  Charlton,  37  Wis.  533.     §  363. 
V.  Kmg,  13  Ired.  L.  20.     §  107. 
V.  :Mellard,   15  C.   B.  (N.  S.)  19. 
§164 
Dean,  and  Chapter  of  York  v.  Mid- 
dlebm-gh,  2  Y.  «fe  J.  196.     §§  373, 
416. 
Dean  of  Ely  v.  Bliss,  2  De  G.  M.  &  G. 

471.    §403. 
Dean  of  York,  Matter  of,"  2  Q.  B.  34 

§300. 
Dearborn  v.  Brookline,  97  Mass.  466. 
§367. 
V.  Patton,  3  Ore.  420.    §  167. 
De  Begnis  v.  Armstead,  10  Bing.  107. 

§336. 
Debevoise  v.  N.  Y.  etc.  R.  R  Co.  98 

N.  Y.  377.    §§  12,  13. 
De  Bow  V.  People,  1  Denio,  14   §§  36, 

40,  181,  182,  294 
De  Camp  v.   Eveland,   19  Barb.  81. 
§§  183,  331. 
V.  Hibernia  R  R  Co.  47  N.  J.  L. 
43.     §  387. 
De  Cells  v.  United  States,  13  Ct  of 

CL  117.     §§  297,  300. 
De  Chastellux  v.  Fairchild,  15  Pa,  St 

18.     §§  10,  480,  484 
Deck  v.  Gherke,  6  CaL  666.    §  397. 
De  Cordova  v.  Galveston,  4  Tex.  470. 

§206. 
Deddrick    v.   Wood,   15    Pa.    St    9. 

§§  310,  313. 
Deerfield   v.    Arms,   20    Pick.    480. 

§439. 
Deermg  v.  York,  etc  R  R  Co.  31  Me, 

173.    §331. 
De  Giacomo,  In  re,  12  Blatch.  391. 

§469. 
De  Graff  v.  St.  Paul,  etc  R  R  Co.  33 
Minn.  174    §  473. 


-XXXVUl 


CASES   CITED. 


De  Groot  t.  United  States,  5  "Wall. 

419.     §  136. 
De  Kay  v.  Darrah,  14  N.  J.  L.  288. 

g426. 
Delano  v.  Jopling,  1  Litt.  117.    §§  181, 

295. 
Dela plane  v.  Cranshaw,  15  Gratt.  479. 

§§  298,  300. 
Delaware,  etc.  R  R.  Co.  v.  Burson,  61 

Pa,  St  369.     §  367. 
Dells  V.  Kennedy,  49  Wis.  555.    §  174. 
Delmas  v.   Ins.    Co.    14  Wall.    665. 

§  429. 
De  Lorme  v.  Pease,  19  Ga.  220."  §  342. 
Den  T.  Diamond,  4  B.  &  C.  243.  §  362. 
v.  Robinson,  5  N.  J.  L.  689.  §  164. 
Dendy  v.  Gamble,  64  Ga.  528.  §  422. 
Denliam   V.   Holeman,   26  Ga.    182. 

§424 
Denn  v.  Reid,  10  Pet.  524.    §§  236,  237, 

410. 
Dennick  v.  Centi-al  R.  R.  Co.  103  U.  S. 

11.    §§  14,  188. 
Denning  v.   Cor  win,   11  Wend.  647. 
§391. 
V.  Foster,  42  N.  H.  165.    §  342. 
V.  Smith,  3  John.  Ch.  331.    §  454. 
Denny  v.  Mattoon,  2  Allen,  361.    §  10. 
Dent  V.  Ross,  52  Miss.  188.     §§  392, 

398. 
Denton  v.  Reading,  22  La.  Ann.  607. 

§§  234,  236. 
Dentzel  v.  Waldie,  30  Cal.  138.    §§  164, 

483. 
Denver  Circle  R.  R.  Co.  v.  Nestor,  10 

Colo.  403.     §  135. 
Department  Pub.  Works,  In  re,  86 

N.  Y.  347.     §§  92,  93. 
Depas  V.  Riez,  2  La.  Ann.  30.    §  246. 
De  Pauw  v.  New  Albany,  22  Ind.  204. 

§  202. 
Deposit,  Village  of,  v.  Vail,  5  Hun, 

310.     §  169. 
Dequasei  v.  Harris,  16  W.  Va  345. 

§§  394,  400. 
Dequindre  v.  WilUams,  '31  Ind.  444. 

§206. 
Derr  v.  Lubey,  1  MacArthur,    187. 
-     §428. 


De  Russey  v.  Davis,  13  La.  Ann.  468. 

§380. 
Desban  v.  Pickett,  16  La.  Ann.  350. 

§138. 
De  Sentamanat  v.  Sole,  33  La.  Ann. 

.      609.     §§  260,  261. 
Des  Moines  V.  Gilchrist,  67  Iowa,  210. 

§§  390,  456. 
Desmond  v.  Dunn,  55  CaL  242.   §  129. 
Desnoyer  v.  McDonald,  4  Minn.  515. 

§184. 
De  Sobry  v.  De  Laistre,  2  Har.  &  J. 

191.     §§  192,  297. 
Deters  v.  Renick,  37  Mo.  597.    §  157. 
Deti-oit    V.    Chaffee,    70     Mich.     80. 
§371. 
V.  Plank  Road  Co.  43  Mich.  140. 

§473. 
V.  Putnam,  45  Mich.  263.     §  371. 
De  Vaucene,  In  re,  31  How.  Pr.  337. 

§§  87,  93,  120,  124,  170. 
De  Veaux  v.  De  Veaux,  1  Strob.  Eq. 

283.     §g  247,  346. 
Devine  v.  Board  of  Commissioners, 

84  111.  590.     ^  129. 
Devoy  v.  Mayor,  35  Barb.  264.    §  137. 
De  Vries  v.  Conkling,  22  mdh.  255. 

§400. 
Dew    V.  Cunningham,  28   Ala.  471. 

§49. 
Dewart   v.  Purdy,  29    Pa.   St   113. 

§  206. 
Dewees   v.  Colorado,  32   Tex.    570. 

§298. 
DeAvey  v.  Goodenough,  56  Barb.  54 
§§  350,  400. 
v.  Gray,  2  CaL  374    §  320. 
Dewhurst  v.  Alleghany,  95  Pa.  St 
437.     §  170. 
V.  Fielden,  7  M.  &  G.  182.    §§  266, 
327. 
De  Winton  v.  Mayor,  26  Beav.  53a 
§153. 
V.  Mayor  of  Brecon,  28  L.  J.  Ch. 
600.    §  217. 
De  AVolf  V.  Rabaud,  1  Pet  479.  §§  185, 

186. 
Dexter   v.  Cranston,  41  Mich.  44a 
§§  113, 114 


CASES    CITED. 


XXXIX 


Dexter  v.  Limerick  P.  R.  Co.  v.  Allen, 
1(>  Barb.  15.     g  154. 
V.  Sliepard.  117  Mass.  480.    §  114. 
Deyiaud,  Succession  of,  9  Rob.  (La.) 

357.     §  463. 
Diana,  Tlie,  4  Moore,  P.  C.  11.    §  3G4. 
Dibrell    v.  Dandridge,  51    Miss.   55. 

§^  392,  398. 
Dick's  Appeal,  106  Pa.  St  589.  §§  157, 

266,  396,  440. 
Dickenson    v.   Breedeu,   30    IlL  279. 
§181. 
V.  Fletcher,  L.  R.  9  C.  P.  8.  §§  256, 
352. 
Dickey  v.  Hurlburt.  5  CaL  343.     §  10. 
Dickins  v.  N.  Y.  Cent.  R.  R  Co.  23 

N.  Y.  159.     §  371. 
Dickinson  v.  Northeastern  R'y  Co.  2 
H.  &  C.  735.     §  371. 
V.  Van  Wormer,  39  Jklich.   141. 
§399. 
Diedrick    v.     Richley,    2    Hill,    271. 

§439. 
Diez,  In  re,   56  Barb.  391.    §§  184, 

190. 
Diggle  V.  London,  etc.  R.  R.  Co.  5  Ex. 

442.     §  456. 
Dikeman  v.  Dikenian,  11  Paige,  484. 

§478. 
Dillard,  Ex  parte,  68  Ala  594.     §  111. 
Dillard  v.  Alexander,  9  Heisk.  719. 
§20. 
V.  Noel,  2  Ark.  449.    §  397. 
Dillon  V.  Dougherty,  2  Grant's  Cas. 
299.     §  480. 
V.  Lmder,  36  Wis.  344    §  167. 
Dingley  v.   Moore,    Cro.    Ehz.    750. 

§  136. 
Dismukes  v.   Stokes,  41    Miss.    431. 

§  164. 
Di  Sora  v.  Phillips,  10  H.  of  L.  Cas. 

624.     §  192. 
Distilled  Spirits,  The,  11  Wall.  356. 

§138. 
Disti'ict  of  Columbia  v.  Washington 

Market,  108  U.  S.  243.     §  300. 
District    Township    of   Dubuque    v. 
Dubuque,   7   Iowa,  262.     §§  204, 
325,  326. 


Divine  v.  Harvie,  7  T.  B.  Mon.  443. 

§335. 
Division  of  Howard  Co.  15  Kan.  194. 

§300. 
Dixon  V.  Caledonian  R'y  Co.,  L.  R.  5 
App.  Cas.  827.     §  322. 
V.  Nicolls,  39  IlL  372.     §  302. 
V.  Thatcher,  14  Ark.  141.     §  190. 
Doan  V.  Boley,  38  Mo.  449.     §  63. 
Dobbins  v.  First  Nat.  Bank,  112  IlL 
553.     §§  225,  482. 
V.  Northampton,  50  N.  J.  L.  496. 
§  128. 
Dobbs    V.    Grand    Junction  Water- 
Works,  L.  R,  9  Q.  B.  Div.  158. 
§138. 
Dockstader  v.  Sammons,  4  HUl,  546. 

§  371. 
Dodd  v.  State,  18  Ind.  56.    §  211. 
Dodge,  Ex  parte,  7  Cow.  147.     §  115. 
Dodge  V.  County  of  Platte,  16  Hun, 
285.     §  480. 
V.  Gardiner,  31  N.  Y.  239.     §  292. 
V.  Gridley,  10  Ohio,  173.    §  287. 
V.  Williams,  46  Wis.  92.    §§  15, 

184. 
V.  Woolsey,  18  How.  331.    §§  197, 
480. 
Doe  V.  Avaline,  8  Ind.  6.     §  367. 

V.  Chuun,  1  Blackf.  336.    §  390. 
v.  Considine,  6  Wall.  458.  §§  246, 

260. 
V.  Eslava,  11  Ala.  1028.    §§  181, 

189. 
V.  Harvey,  4  B.  «fe  C.  610.     §  247. 
V.  Naylor,  2  Blackf.  32.    §  168. 
V.  Snaith,  8  Biug.  146.     §  362. 
V.  Waterton,   3   B.   &    Aid.   149. 
§  423. 
Doggett  V.  Catterns,  17  C.  B.  (N.  S.). 
669;  19    C.  B.    (N.  S.)   765.' 
§280. 
V.  Walter.  15  Fla,  355.    §  311. 
Dohorty  v.  Alhnan,  L.  R.  3  App.  Caa. 

709.     §  333. 
Dolan    V.    Thomas,    12    Allen,    421. 

§143. 
Dolder  v.  Huntingfield,  11  Yes.  283. 
§  297. 


xl 


CASES    CITED. 


Dole  V.  Wilson,  16  Minn.  525.     §  294. 
Dolese  t.  Pierce,  120  IM.  140.   §  101. 
Domick    v.   Mchael,  4    Sandf.   374. 

§  256. 
Don  V.  Lippmann,  5  CL  &  Fin,  1. 

§479. 
Donaldson  v.  Beckett,  2  Bro.  P.  C. 

129.    §  399. 
Donnell  v.  State,  48  Miss.  679.    §§  4, 

21. 
Donner  v.  Palmer,  23  Cal.  40.    §  206. 
Donoliue   v.   Ladd,    31    Minn.    244. 

§260. 
Dooling  V.  Moore,  20  CaL  14    §  454. 
Doolubdass  v.  Ramloll,  7  Moore  P.  C. 

239.    §  206. 
Dorr   V.   Gibboney,  3  Hughes,   382. 

§20. 
Dorris    v.    Erwin,   101    Pa.  St  239. 

§400. 
Dorsey's  Appeal,  72  Pa.  St  192.    §§  78, 

83,  86,  87.  88,  102,  103,  170. 
Dorsey  t.  Dorsey,  31  Md.  64.    §  119. 
Dougherty   v.  Bethime,    7    Ga.    90. 

§213. 
Doughty    V.    Hope,     3    Denio,    594. 
§§  400,  457. 
V.  Hope,  1  N.  Y.  79.    §§  207,  390, 
457. 
Douglas   V.    Douglas,   5    Hun,    140. 

§§  156,  256. 
Douglass,  In  re  Petition  of,  58  Barb. 

174.  §§  447,  457. 
Douglass  V.  Chosen  Freeholders,  38 
N.  J.  L.  212.  §§  235,  237,  238. 
V.  Eyre,  Gilpm,  148.  §§  252,  261. 
V.  Mayor,  etc.  18  CaL  643.  §  365. 
V.  Pike  Co.  101  U.  S.  677.    §§  206, 

319,  474. 
V.  Placerville,  18  CaL  643.    §  380. 
Dousman  v.  O'Malley,  1  Doug.  (Mich.) 

450.    §§  111,  112. 
Dover  Gas  L.  Co.  v.  Dover,  7  De  G. 

M.  &  G.  545.    §  443. 
Dow   V.    Beidehnan,    49    Ark.    325. 
§125. 
V.  Johnson,  100  U.  S.  158.     §  20. 
Dowdell  V.  State,  58  Ind.  333.    §§  142, 
143. 


Dowling  V.  Smith,  9  l\Id.  242.     §  104 

V.  State,  5  Sm.  &  M.  664     §  469. 
Downer  v.    Rugar,   21    Wend.   178. 

§390. 
Downie  v.   Hendrie,  46    Mich.   498. 

§306. 
DowTiing  V.  Baldwin,  1  S.  &  R  298. 
§437. 

V.  Lmdsay,  2  Pa  St  382.    §  424 

V.  IVmtonvale,  36  Kam.  740.  §  296. 
Downs  y.  Town  of  Huntington,  35 

Conn.  588.     §§  165,  167,  225. 
Doyle  V.  Continental  Ins.  Co.  94  U.  S. 
535.    §  330. 

V.  Howard,  16  Mich.  261.     §  390. 

V.  Mizner,  41  Mich.  549.    §§  111, 
113. 
Dozier  v.  EUis,  28  Miss.  730.    §§  368, 

426. 
Drain  Com'r  v.  Baxter,  52  IVIich.  127. 

§311. 
Drake  v.  Andrews,  2  Mich.  203.  §  115. 

V.  Drake,  4  Dev.  110.    §  261. 

V.  FleweUen,  33  Ala.  106.    §  194 

V.  Jordan,  73  Iowa,  653.     §  469. 

V.  State,  5  Tex.  App.  649.    §  325. 

V.  Wilkie,  30  Hun,  537.    §  479. 
Drennan  v.  People,   10    Mich.    169. 

§403. 
Draper  v.  FaUey,  33  Ind.  165.    g§  131, 

132. 
Drayton  v.  Grimke,  1  Bailey's  Eq.  239. 

§437. 
Dred  Scott  v.  Sanford,  19  How.  445. 

§§  24,  25,  70. 
Drew  County  v.  Bennett,  43  Ark.  364 

§142. 
Drew  V.  Dequindre,  2  DougL  (Mich.) 
93.    §  893. 

V.  Wakefield,  54  Me.  291.    §  184. 
Drummond  t.  Drummond,  L.  R  2  Ch, 

45.     §  300. 
Duane's  Case,  1  Binn.  601.    §  166. 
Duanesburgh    v.    Jenkins,  46  Barb. 
294.     §  456. 

V.  Jenkins,  57  N.  Y.  191.     §§  482, 
483. 
Dubos  T.   McLean,  4    McLean,  486. 

§206. 


CASES   CITED. 


idi 


Dubuque  v.   Dubuque,    7  Iowa,  262. 

§g  204,  325,  326. 
Dubuque  R.  R  Co.  v.  Des  Moines  R. 
R.  Co.  109  U.  S.  329.     §  379. 

T.  Litchlield,  23  IIovv.  66.     §  379. 
Dudley,  In  re  Corporation  of,  L.  R.  8 

Q.  B.  Div.  93.     §  344. 
Dudley  v.  Mayhew,  3  N.  Y.  9.  §§  204, 
207,  325,  399. 

V.  Reynolds,  1  Kan.  285.    §  324. 

V.  Steele,  71  Ala,  423.    g  256. 
Duff  V.  Fisher,  15  Cal.  325.     §  314. 
Duffy  V.  Ogden,  64  Pa.  St.  240.  §  111. 
Dugan  V.  Bridge  Co.  27  Pa.  St  303. 
g§  221,  380. 

V.  Gittings,  3  Gill,  138.    §§  138, 
154,  283. 
Dulany  v.  lilghman,  6  G.  &  J.  461. 

§§  164,  194. 
Dull  V.  People,  4  Denio,  94.    §§  227, 

349. 
Dunbar  v.  Roxburghe,  3  CL  &  Fin. 

335.     §§  308,  312. 
Duncan    v.   Drakeley,   10    Ohio,  47. 
§398. 

T.  State,  7  Humph,  148.    §  229. 
Duncombe  v.   Prindle,   12   Iowa,   1. 

§g  35,  183,  213,  294. 
Dunehn,  The,   L.  R.  9   P.  Div.  171. 

§  254. 
Dunham  v.  Sage,  52  N.  Y.  229.  §  146. 

V.  Wright,  53  Pa.  St  167.    §  458. 
Dunlap,  Ex  parte,  71  Ala.  93.    §  240. 
Dunlap  V.  Crawford,  2  McCord  Eq. 
171.     §  229. 

T,  Wagner,  85  Ind.  529.     §§  375, 
376. 
Dunmore,  Appeal  of  Borough  of,  52 

Pa.  St  374    §  473. 
Dunnebaum  v.  Schram,  59  Tex  281. 

§445. 
Du  Page  County  v.  Jenks,  65  lU.  275. 

§  390. 
Duquesne  Savings  Bank's  Appeal,  96 

Pa.  St  298.     §  324. 
Duramus  v.   Han-ison,  26  Ala.  326. 

§256. 
Durham,  Inhabitants  of,  v.  Inliabit- 

ante  of  L.  4  Greenl.  110.     §  10. 


Durham  v.  Lewiston,  4  Me.  140.  §  119. 
Durkee  v.  JanesviUe,  26  Wis.   697. 

§§  78,  90. 
Dm-yee  v.  Mayor,  etc.  96  N.  Y.  477. 

§  109. 
Dutton  V.  Howell,  Show.   P.   C.   32. 

§  15. 
Duval  V.  Malone,  14  Gratt  28.    §46a 
DweUy  v.  Dwelly,  46  Me.  377.   §§  139, 

207,  290. 
Dwight  V.  Richardson,  12  Sm.  &  JL 

325.     §§  184,  191. 
Dyer  v.  Best,  L.  R  1  Ex.  152.    §  308. 

V.  Covington  Township,  28  Pa. 
St  186.     §  157. 

V.  Smith,  12  Conn.  384.    §§  190, 
192. 

v.  State,  Meigs,  237.    §§  104,  168. 
Dyson  v.  Sheley,  11  Mch.  527.   §39a 

V.  West,  1  Har.  &  J.  567.    g§  394, 
400. 

Eagan  v.  State,  53  Ind.  162.    §  303. 
Eager,  In  re  Petition  of,  58  Barb.  557. 

§464 
Eakin  v.  Raub,  12  S.  &  R  363.    §  206. 
Earl    of    Ailesbmy    v.    Pattison,    1 

Doug.  28.     §§  283,  288. 
Earl  of  Shrewsbury  v.  Scott,  6  C.  R 

(N.  S.)  1.     §  194 
Earl  of  Water! ord's  Peerage,  6  CL  «& 

Fin.  173.    §  308. 
Earle  v.  Board  of  Education,  55  CaL 

489.    §§  129,  132. 
Early  v.  Doe    ex  dem.  Romans,  16 

How.  615.    §  114 
Earthman    v.    Jones,  2   Yerg.    484 

§391. 
Easley  v.  Whipple,  57  Wis.  485.  §  322. 
East  Haven  v.  Hemingway,  7  Corm. 

186.     §  386. 
East   India    Interest    3    Bing.    196. 

§§  348.  350. 
Eastman  v.  :McAlpin,  1  Ga.  157.  §210. 
East  Union  Townsliip  v.  Ryan,  86  Pa. 

St  459.    §  390. 
Eastwood  V.  Miller,  L.  R  9  Q.  B.  440. 

§  280. 
Eaton  V.  Green,  22  Pick.  526.    §  322. 


xlii 


CASES    CITED. 


Eaton  V.  Walker,  76  Mich.  579.    §  103. 
Ebbs  T.  PovOnois,  L.  R.  10  Cli.  479. 

§243. 
Eby's  Appeal,  70  Pa  St.  311.    §  267. 
Eckhart    v.    State,    5  W.    Va.    515. 

g§  174,  180. 
Eckloff     V.    Dist    of     Columbia,    2 

Mackay,  573.    §153. 
Edeubiu-gh  R.  R.  v.  Wauchope,  8  CI. 

&  F.  710.     §  193. 
Edge  T.   Commonwealtli,  7  Pa.  St. 

375.     §  333. 
Edger  v.  County  Commissioners,  70 

Ind.  331.     §  30  . 
Edgerly  v.  Bush,  81  N.  Y.  199.   §  188. 
Edinbm-gh,  etc.  R.  R.  Co.  v.  Linlith- 
gow, 3  Macq.    H.    L.   Cas.  704. 
§313. 
Edmonds  v.  Lawley,  6  M.  &  W.  285. 

§§  306,  464,  482. 
Edmundson  v.   Wragg,  104  Pa.   St. 

500.     ^§  114,  115. 
Edsou  V.  Hayden,  30  Wis.  683.    §  273. 
Edward  v.  Trevellick,  4  E.  &  B.  59. 

§§  356,  429. 
Edwards  v.  Darby,  13  Wheat.   306. 
§309. 
V.  Davis,  16  John.  381.     §  307. 
V.  Dick,  4  B.  &  Aid.  313.     §  240. 
V.  Gouldmg,  38  Miss.  118.   §§  289, 

290,  400. 
V.  Grand  Junction  R.  R.  Co.  10 

Eng.  Ch.  85.     §  194. 
V.  HaU,  30  Ai-k.  31.    §  448. 
V.  Jagers,  19  Ind.  407.    §  473. 
V.  Kearzey,  96  U.  S.  595.     §§  471, 

477,  479. 
V.  Williamson,     70      Ala.      145. 
§§  206,  331. 
Egerton  v.  Tlurd  Municipality,  1  La 

Ann.  435.     §§231,246,429. 
Egnew    V.   Cochrane,  2  Head,    339. 

§§  17,  184,  189,  301.  307. 
Egypt   Street,    2    Grant's    Cas.  455. 

§138. 
Eilers  v.  Wood,  64  Wis.  422.     §  390. 
Eld  V.  Gorham,  30  Conn.  8.    §§  27, 

53. 
Elder  v.  Bemis,  2  Met  599.     §  333. 


Elder  v.  Bradley,  Adm'r,  2  Sneed,  252L 

§  113. 

v.  State,  96  Ind.  163.     §  134. 

Eldi-idge  v.  Pierce,  90  111.  474     §  364 

Electric  M.  etc.  v.  Van  Auken,  9  Colo. 

204.     §§  219,  438. 
Eliot    V.    Himrod,   108    Pa  St.   569. 

§§  355,  356. 
Elliot  V.  Lyell,  3  Call,  368.     §  463. 
Elizabethto-wn,  etc.  R.  R.  Co.  v.  Ehza- 
bethtown,  13  Bush,  233.     §§  138, 
151,  152. 
Ellingham  v.  Mount,  43  N.  J.  L.  470. 

§343. 
Elliott    V.    Chapman,    15    CaL    383. 
§454 
V.  Lochuane.  1  Kan.  135.     §  160. 
V.  Swartwout,  10  Pet  137.    §§  254, 
346. 
Ellis,  Ex  parte,  11  Cal.  233.    §§  218, 
338,  346. 
V.  Hutcliinson,     70     Mich.    154 

§103. 
V.  Maxson,  19  Mick  186.     §  184 
V.  Murray,  38  Miss.  139.    §§  267, 

278. 
V.  Owens,  10  M.  &  W.  521.    §  310. 
T.  Paige,  1  Pick.  45.     §§  154,  155. 
V.  Park,  8  Tex.  205.     §  306. 
V.  Whitlock,  10  Mo.  781.    §§  360, 

444. 
V.  Wiley,  17  Tex.  134    §  190. 
Ellison  V.  Mobile,  etc.  R.  R.  Co.  36 

Miss.  572.     §§  215,  239. 
Elmendorf  v.  Carmachael,  3  Litt  473. 
§194 
V.  Taylor,  10  Wheat  153.    §§  186, 
191,  293. 
Elmwood  V.  Marcy,  92  U.  S.    289. 

§185. 
Ekod  V.  Gilliland,  27  Ga  467.    §  138. 
Elsworth  V.   Cole,  2  K  &  W.    3L 

§212. 
Elton  V.  Geissert,  10  Pliila  330.   §  217. 
Elwood  V.  Flannigan,  104  U.  S.  568. 

§185. 
Ely  V.  Holton,  15  N.  Y.  595.    §§  133, 
137.  206. 
V.  James,  123  Mass.  36.  §§190,192- 


CASES    CITED. 


xliii 


Ely  V.  Thompson,  3  A.  K  ^larali.  70. 

§§  136,  138. 
Emanuel  v.  Constable,  3  Russ.  436. 

g212. 
Emerick  v,  HaiTis,  1  Binn.  416.   §  169. 
Emerson    v.    Atwater,  7    Midi.   33. 
§313. 
V.  Clayton.  32  111.  493.     §  146. 
V.  Commonwealth,  108  Pa.  St  111. 
§  433. 
Emery  v.  Berry,  28  N.  H.  486.    §  190. 
Emigrant  Industrial  Savings  Bank, 

In  re,  75  N.  Y.  388.     §  457. 
Emory  v.  Addis,  71  IlL  273.    §§  374, 

375. 
Employers'  L.  Co.  v.  Commissioner  of 

Ins.  64  Mich.  514.     §  309. 
Emporia    v.    Norton,   13    Kan.   569. 

§g  130,  134. 
Enfield  Toll  Br.  Co.  v.  Hartford,  etc. 
R  R  Co.  17  Conn.  40  and  454. 
§473. 
Engelking  v.  Von  Wamel,   26  Tex. 

469.     §  247. 

Engleken  v.   Hilger,  43    Iowa,  563. 

§375. 

V.  Webber,  47  Iowa,  558.    §  377. 

English  V.  Beard,  51  Ind.  489.    §  373. 

V.    OUver,  28  Ark.  317.    §§  46, 

183. 
V.  State,  7  Tex  App.  171.    §§  93, 
95. 
Enloe  V.  Reike,  56  Ala.  500.    §  151. 
Emiis  V.  Cnimp,  6  Tex.  34.     §  256. 
V.  Smith,  14  How.  400.     §§  186, 
190,  192. 
Enos  V.  Buckley,  94  HI.  458.    §  146. 
Ensign  v.  Barse,  107  N.  Y.  329.    §  95. 
Enterprise,  Schooner,  The,  1  Paine, 

32.    §g  347,  349,  353. 
Entick  V.  Carriugton,  19  How.  St  Tr. 

1029.     §  414. 
Epps  V.  Epps,  17  III  App.  196.    §  223. 
Equitable  L.  Ins.  Co.  v.  Gleason,  56 

Iowa,  48.     §  469. 
Erie  v.  Knapp,  29  Pa.  St  173.     §  428. 
Erie,  etc.  R  R  Co.  v.  Casey,  1  Grant's 

Gas.  274.     §  10. 
Erliuger  v.  Boneau,  51   IlL  94.     §  76. 


Ernst  V.  Morgan,  39  N.  J.  Eq.  391. 

§128. 
Eshleman's  Appeal,   74    Pa.   St   42. 

g§  240,  253. 
Eskridge   v.  Ditmars,  51    Ala.  245. 
§  482. 
V.  McGruder,  45  Miss.  294.  §  283. 
Estep  V.  Hutchman,  14  S.  &  R.  435, 

§194 
Esterbrook    INIfg.   Co.  v.  Ahem,  30 

N.  J.  Eq.  341.     §  306. 
Esterley's    Appeal,    54   Pa.   St    192. 

§290. 
Em-eka  Case,  4  Sawyer,  302.    §218. 
Em-eka  v.  Davis,  21  Kan.  580.    §§  88, 

92. 
Eustis  V.  Kidder,  26  Me.  97.    §  448. 
Evans  v.  Browne,  30  Ind.  514.    §  38. 
V.  Jones,  9  Bing.  311.     §  419. 
V.  Memphis,  etc.  R  R  Co.  56  Ala. 

246.    §§  86,  102. 
V.  Montgomery,   4  Watts    &    S. 

218.     §§  10,  476. 
V.  Myers,  25   Pa.  St  114    §  308. 
V.  Pratt,  3  M  &  G.  767.     §  441. 
V.  Stevens,  4  T.  R  462.    §§  247, 

270. 
V.  WiUiams,  2  Drew.  &  Sm.  324 
§§  463,  481. 
Evansville  v.   Bayard,   39  Ind.   450. 

§§  140,  159. 
Evansville,  etc.  R  R.  Co.  v.  Barbee, 

74  Ind.  169.     S  107. 
Evanturel  v.  Evantxirel,  L.  R  2  P.  C. 

462.    §310. 
Everett  v.  Wells.  2  Man-  &  Gr.  269. 
§258. 
V.  Wells,  2  Scott  N.  R  531.  §  324 
Evergreens,  flatter  of,  47  N.  Y.  216. 

§152. 
Evernliam  v.  Huht,  45  N.  J.  L.  53. 

§135. 
Ewart  v.  WiUiams,  3  Drew.  21.  §300. 
Ewell  V.  Daggs,  108  U.  S.  148.    §  164 
Ewer  V.  Jones,  2  Salk.  415.    §  399. 
Ewing's  Case,  5  Gratt  701.    §§  206, 

469. 
Ewing  V.  Biu-net  11  Pot  41.    §  234 
V.  Ewmg,  24  Ind.  470.     §  315. 


xliv 


CASES    CITED. 


Ewing  T.  Hoblitzelle,  85  Mo.  64.     §  93. 
Excelsior  Manvif  g  Co.  v.  Keyser,  63 

Miss.  155.     §  482. 
Excelsior  Peti'oleum  Co.  v.  Embury, 

67  Barb.  261.     §§  140,  154. 
Eyre  t.  Jacob,  14  Gratt  422.     §  '332. 
Eyston  v.  Studd,  3  Plowd.  464.  §§  334, 

258,  411,  413. 
Eziekel  v.  Dixon,  3  Ga.  151.     §§  234, 

236,  241. 

Fackler  v.  Fackler,  14  Mo.  431.  §  424. 
Fairchild  v.  Gwynne,  14  Abb.  Pr.  121. 
§§  104,  107,  110,  300,  434. 

V.  Masonic    Hall    Asso.   71    Mo. 
526.     §  261. 
Fairfield  v.  County  of  GaUatin,  100 
U.  S.  47.     §  319. 

V.  Ratcliff,  20  Iowa,  396.    §  365. 
Falconer  v.  CampbeU,  2  McLean,  195. 
§54. 

V.  Eobinson,  46  Ala,  340.    §§  88, 
135. 
Falk,    Ex   parte,    42   Ohio    St   683. 

§§  117,  120,  123. 
Fall  Brook  Coal  Co.  v.   Lynch,  47 

How.  Pr.  520.     §  193. 
FaUon,  Ex  parte,  5  T.  R  283.    §§111, 

113. 
Fant  V.  Gibbs,  54  Miss.  896.    §  174. 
Faqua  v.  MuUen,  13  Bush,  467.  §§  102, 

103,  170. 
Farley  v.   Bonham,  2  J.  &  H.  177. 
§300. 

V.  De  Waters,  3  Daly,  193.  §§  138, 
145. 

V.  Dowe,  45  Ala.  334.    §  476. 
Farmer  v.  People,  77  la  322.    §§  164, 

236. 
Farmers'  Bank  v.  Hale,  59  N.  Y.  53. 

§§  160,  330,  333,  346. 
Farmers',  etc.  Co.  v.  Chicago,  etc.  R 

R  Co.  39  Fed.  Rep.  143.    §  331. 
Farmers'  Ins.  Co.  v.  Highsmith.  44 

Iowa,  330.     §§  93,  96. 
Farmers',  etc.  Nat  Bank  v.  Dearing, 

91  U.  S.  29.     §  351. 
Farmer's  Heirs  v.   Fletcher,  11   La. 

Ann.  142.    §  314. 


Farmers'  L.  &  T.  Co.  v.  Oregon,  etc 

R  R  Co.  24  Fed.  Rep.  407.  §§  93, 

96. 
Farmers'  &  Mechanics'  Nat  Bank  v. 

Deariag,  91  U.  S.  29.   §§  359,  360. 
Farmers'  Turnpike  v.  Coventry,   10 

John.  389.     §  303. 
Famswcrth  v.  Lisbon,   62  Ma  451. 

§67. 
Farnum  v..  Blackstone  Canal  Corp.  1 

Sumn.  46.     §  324 
Farr  v.  Brackett,  30  Vt  344.    §  154. 
Farrar  v.  Bates,  55  Tex.  193.    §  299. 
Farrell  Foimdry  t.  Dart,  36  Conn. 

376.     §§  337,  338,  431. 
Fairington    v.    Rennie,    3  Cai.   330. 

§  371. 
Farris  v.  Houston,  78  Ala.  350.  §  464. 
Favers  v.  Glass,  32  Ala.  621.     §  248. 
Favorite  v.  Booher,  17  Ohio  St  548. 

§§  368,  426. 
Fayette  Co.  v.  Faires,  44  Tex.  514. 

§§  138,  154. 
Featherstonh  v.  Compton,  8  La,  Ann. 

285.     §  482. 
Feemster  v.  Rmgo,  5  T.  B.  Mon.  336. 

§306. 
Feibleman  v.  State,  98  Ind.  521.  §  132. 
Feldman  v.  Morrison,  1  111.  App.  460. 

§  325. 
FeU  V.  State,  42  Md.  71.    §§  73,  75. 
FeUowes  v.  Clay,  4  Q.  B.  356.    §  300. 
Fellows  v.  Walker,  39  Fed.  Rep.  651. 

§138. 
Felt  V.  Felt  19  Wis.  193.    §§  158, 217, 

325. 
Fenlon,  Petition    of,  7  Pa   St  173. 

§§  165,  464. 
Fenton  v.  Livingstone,  3  Macq.  H.  .L. 
Cas.  497.     §  12. 

V.  State,  100  Ind.  598.    §  303. 
Fenwick  v.  SchmaLz,  L.  R  3  C.  P. 

315.     §§  270,  276,  278. 
Ferguson,  Ex  parte,  L.  R  6  Q.  B.  291. 

§404. 
Fergusson  v.  Norman,  5  Bing.  N.  C. 

76.     §  336. 
Fermoy  Peerage  Claim,  5  H.  of  Lk 

Cas.  747.     §§  307,  313. 


CASES    CITED. 


xlv 


Ferris  v.  Higley,  20  WalL  375.  §§  312, 

395. 
'Fertilizing  Co.  v.  Hyde  Park,  97  U.  S. 

659.     §§381,473. 
Fessenden  v.  HiU,  G  Mich.  242.  §§207, 

393,  401. 
Fidelity  Ins.  Co.  v.  Shenandoah  V. 

R  R  Co.  9  S.  E.  Rep.  759.    §  103. 
Fidelity  Trust  Co.  v.  Gill  Car  Co.  25 

Fed  Rep.  737.    §  396. 
Fidler  v.  Hershey,  90    Pa,   St  363. 

§440. 
FieH   V.    Gooding,    106    Mass.    310. 

§aio. 

Field's  Heirs  v.  Goldsby,  28  Ala.  218. 

§315. 
Field  V.  People,  3  Scam.  79.    §  229. 
V.  Silo,  44  N.  J.  L.  355.     §  127. 
Fifield  V.  Marinette  Co.  62  Wis.  532. 

§452. 
FUes  V.  Fuller,  44  Ark.  273.    §§  136, 

225. 
Finch  V.  Birmingham  Canal  Co.  5  B. 

&  C.  820.    §  441. 
Finn  v.  Haynes,  37  Mich.  63.    §  206. 
Finney  t.   Ackerman,  21  Wis.  268. 

§  206. 
Fire  Department  of  Troy  v.  Bacon,  3 

Abb.  App.  127.     §  198. 
Firemen's  Benefit  Asso.  v,  Loimsbury, 

21  111.  511.     §  96. 
First  National  Bank  v.  Yankton,  101 

U.  S.  129.     §§  23,  24. 
First    Nat.    Bank    of    Whitehall   v. 

Lamb,  50  N.  Y.  95.     §  220. 
First  School  Dist  v.  Ufford,  53  Conn. 

44     §  207. 
Fisher   v.    Bidwell,    27    Conn.    363. 
§400. 
V.  Connard,     100     Pa.     St    63. 

§§  258,  259,  267. 
V  Harnden,  1  Paine,  55.     §  138. 
V.  Horicon  I.   Co.   10  Wis,   355. 

§  314. 
V,  McGu-r,  1  Gray,  1.    §  170. 
V.  New  York,  etc.  R  R  Co.  46 
N.  Y.  644    §  166. 
Fishkill  V.  F.  &  B.  Co.  22  Baib.  634. 
§§  78,  87,  88,  93,  170. 


Fishwick  v.  Sewell,  4  H.  &  J.  399. 

§425. 
Fisk  V.  VameU,  39  Tex.  73.    §  390. 
Fitzgerald,    Matter   of,    2    CaL   318. 

§400. 
Fitzgerald  v.   Champnejs,   30  L,  J. 
(Ch.)  782 ;  2  Johns.  &  H.  31. 
§157. 
V.  Quan,  109  N.  Y.  441.     §  139. 
Fitzpatrick  v.   Gebhart   7  Kan.  35, 

§§  234  237,  238. 
Flaherty  v.  Thomas,  12  Allen,  428, 

§142. 
Flandei-s  v.  Merrimack,  48  Wis,  567. 

§162. 
Flanagan  v.   Plainfield,  44  N.  J.  L. 

118.    §180. 
Flanigan  t.  Washington  Ins,  Co,  7 

Pa,  St  306.    §§  181,  190, 
Flatan  v.  State,  56  Tex.  94     §  448. 
Fleischner  v.  Chadwick,  5  Ore,  153. 

§§  135,  169,  170. 
Fletcher  v.  Lord  Sondes,  3  Bing.  580. 
§349, 
V,  Peck,  6  Cranch,  138,    §§  465, 

472. 
V.  State,  54  Incl  462.    §  96. 
Flint  V.  Gawer,  66  Iowa,  696.    §  377. 
Flint  etc.  Co.  v.  Woodhull,  25  Mich. 

99.     §§  3,  237,  330. 
Flint  River  Steamboat  Co.  v.  Foster, 

5  Ga  194     §§  322,  366. 
Flory  V.  Wilson,  83  Ind.  391.    §  454 
Flower  t.  Witkovsky,  69  Mich.  371. 

§§  373,  374 

Floyd  V.  Johnson,  2  Litt  109.    §  303. 

V.  Perrin,  30  S.  C.  1.     §  96. 

V.  Ricks,  14  Ark.  286.    §  303. 

Flynn  v.  Abbott  16  Cal.  358.     §  211, 

Fogg   V.    Holcomb,    64    Iowa,    631, 

§§  164  298. 
Foley    V.    Bourg,   10  La.  Ann,  129, 
§  332. 
V.    Fletclier,    28  L,   J.   Ex,   106. 
§348. 
FoUamb's  Case,  5  Coke,  116.    §  341, 
Folkers    v.    Powei-s,    42    ]\Iich.    283. 

§365. 
FoUiott  V.  Ogden,  1  H.  Black.  135,  §  12L 


xlvi 


CASES    CITED. 


Folmers  Appeal.  87  Pa. St  133.  §221. 
Folsom,  In  re  Petition  of,  2  T.  &  C. 

55.    §  456. 
Foltz  T.  Hoge,  54  CaL  28.     §  402. 
Fontaine  v.   Houston,    58    Ind.  316. 

§394. 
Foot  V.  Stevens,  17  Wend.  488.    §  391. 
Foote  V.  Vanzandt,  34  Miss.  40.  §§  208, 

350. 
Forbe  v.  Foot,  2  McCord,  331.    §  424. 
Forbes  v.  Smith,  11  Ex.  161.     §§  424, 

425. 
Ford,  In  re  Petition  of,  6  Lans.   92. 

§456. 
Ford  V.  Booker,  53  Ind.  395.     §  132. 

V.  Farmer,  9  Humph.  152.    §  183. 

V.  Ford.  143  Mass.  577.     §  261. 

V.  Johnson,  34  Barb.  364.    §  422. 
Fordyce  v.  Bridges,  1  H.  of  L.  Cas.  1. 
^§  235,  237. 

V.  Godman,  20  Ohio  St  1.    §§  42, 
253. 
Fore  V.  WiUiams,  35  Miss.  533.   §  221. 
Fork  Ridge  Baptist  Cemetery  Asso. 

V.  Redd,  10  S.  E.  Rep.  405.    §  387. 
Forqueran  v.  Donnally,  7  W.  Va.  114 

§§  138,  288. 
Forshey  v.  Raihoad  Co.  16  Tex.  516. 

§§  401,  439. 
Forsyth  v.   Marbury,  P.   M.   Charlt 
333.     §  206. 

V.  Warren,  62  III  68.   §§113, 114. 
Fort  V.  Bm-ch,  6  Barb.  60.   §§  288,  321, 

407. 
Fort  Plain  Bridge  Co.  v.  Smith,  30 

N.  Y.  44.     §  164. 
Fosdick  V.  Perrysburg,  14  Ohio  St 

472.     §§  107,  157,  158,  256,  300. 
Fortune  v.   St   Louis,   23    Mo.    239. 

S428. 
Foster's  Case,  11   Rep.  586.    §§  217, 

222  325. 
Foster  v.  Blount,  18  Ala.  682.    §§  219, 
268,  279,  280,  365. 

V.  Collner,  107  Pa.  St  305.    §  240. 

V.  Commonwealth,  8  W.  &  S.  77. 
§§  252,  260. 

V.  Illinski,  3  111.  App.  345.     g  393. 

V.  Neilson,  2  Pet  253.     §  197. 


Foster  v.  Oxford,  etc.  R.  R.  Co.  13  C.  B. 
200.     §  336. 

V.  Pritchard,  2  H.  &  N.  151.    §  223. 

V.  Rhoads,  19  John.  191.     §§  350, 
390. 

V.  Taylor,  2  Overt.  190.     §  190. 
Fouke  V.  Flemmg,  13  Md.  392.     §  184. 
Fourth  Nat  Bank  v.  Francklyn,  1^0 

U.  S.  747.     §  293. 
Fowle    v.    Alexandi-ia,    3   Pet    398. 
§  365. 

V.  Ku-kland,  18  Pick.  299     §  167. 
Fowler  v.  Padget  7  T.  R.  509.     §§  252, 
260,  355. 

V.  Peu-ce,  2  CaL  105.    §  41. 

V.  Pirkius,  77  IlL  271.     §  138. 

v.  ScuUy,  72  Pa.  St  456.     §§  327, 
336. 

V.  Smith,  2  CaL  39,  568.     §  19. 

V.  Stoneum,  11  Tex.  478.     §  184. 

v.  Tuttle,  24  N.  H.  9.    §  267. 
Fox's  Appeal,  112  Pa.  St  337.     §  363. 
Fox  V.  AUensville,  46  Ind.  31.     §  114. 

V.  New  Orleans,  12  La.  Amu  154. 
§§  207,  410. 

V.  Sloo,  10  La,  Ann.  11.    §§  207, 
410. 
Fox,  Town  of,  v.  KendaU,  Town  of, 

97  IlL  72.    §§  75,  107. 
Francklyn  v.  Long  Island  City,  33 

Hun,  451.    §  483. 
Frank  v.  San  Francisco,  21  CaL  668. 

§206. 
Frankhn  v.  Frankhn,  1  Md.  Ch.  342. 
§§  207,  410. 

V.  Westfall,  27  Kan.  614.    §  171. 
Franklin  Glass  Co.  v.  White,  14  Mass. 

286.    §454. 
Eraser  v.  Willey,  2  Fla.  116.     §  449. 
Frazer,  Ex  parte,  54  CaL  94.    §  169. 
Frazier   v.   Towti  of   Tompkins,  30 
Him,  168.     §  481. 

V.  Warfield,  13  Md.  279.    §  308. 
Frecking  v.  Rolland,   53  N.  Y.   422. 

§338. 
Fredericks  v.  Howie,  1  H.  &  C.  381. 

§219. 
Free  v.-  Burgoyne,   5  B.   &  C.    400. 

.^.  210. 


CASES    CITED. 


xlv^i 


Freeholders  v.  Stevenson,  40  N.  J.  L. 

173.     §  128. 
Freeman  v.  People,  4  Denio,  9.  g  200. 
Freestone,  Ex  parte,  25  L.  J.  '^L  C. 

121.    §  262. 
Freight  Tax  Case,  15  Wall.  232.  §  171. 
IVeme  t.  Clement,  44  L.  T.  (N.  S.) 

399 ;  L.  R.  18  Ch.  Div.  499.  ^§241, 

246. 
Fremont  v.  United  States,  17  How. 

542.     §§  181,  189. 
French  v.  Commonwealth,  78  Pa,  St 
389.    §473. 

V.  Cowen,  79  Me.  426.    §  311. 

V.    Teschemaker,    24    CaL     544. 
§121. 
Frend  t.  Dermett,  4  C.  B.  (N.  S.)  576. 

§456. 
Friedman  v.  Sullivan,  48  Ark.  213. 

§223. 
Friend  v.  Dunks.  37  Itlich.  25.    §  373. 
Frink  v.  Pond,  46  N.  H.  125.   §  333. 
Frohock  v.  Pattee,  38  Me.  103.  §§  208, 

360. 
Frost  V.  Cherry,  122  Pa  St  417.  §  122. 
Frotliiugham  v.  March,  1  ^Mass.  247. 

§114. 
Fry    v.    Bennett   16    How.  Pr.  402. 
§369. 

V.  Booth,  19  Oliio  St  25.  §  450. 
Frye  v.  Partridge,  82  111.  267.  §  129. 
Fryeburg  Canal  v.  Frye,  5  Me.  38. 

§§  193,  202. 
Fuhrman  v.  Jones,  68  Wis.  497.  §  459. 
FuUer  v.  Rood,  3  HiU,  258.    §  207. 
Fullerton  v.  Bank  of  United  States, 
1  Pet  604.     §  342. 

V.  Spring,   3  Wis.   667.    §§  133, 
134. 
Fultz  V.  Fox,  9  B.  Mon.  499.     §  463. 
Furman     v.    Nichol,    3    Cold.    432. 
§§  138,  154. 

T.  Nichol,  8  Wall  44.    §  138. 
Fiu-nivall  v.  Coombes,  5  M.  &  G.  736. 

§221. 

Gabbert  v.  Jefferson    R.  R   Co.  11 

Ind.  365.     §§  88,  97. 
Gaines  v.  Coates,  51  Miss.  335.    §  378. 


Gaines  v.  Paris,  39  Miss.  403.     §§  343, 
452. 

v.  Horrigan,  4  Lea,  608.    §;g  41, 
43. 
Gale  V.  Laurie,  5  B.  «&  C.  156.    §  364 

v.  Mead,  4  Hill,  109.     §  168. 

V.  Mead,  2  Denio,  160.    §  449. 
Galena  v.  Amy.  5  Wall.  705.    §  138. 
Gallagher  v.  Neal,   3  P.  &  W.  183. 

§351. 
Gallatain  v.  Cunningham,  8  Cow.  361. 

§§  204,  339,  391. 
Gallaway  v.  Maries,  L.  P„  8  Q.  B.  Div. 

275."  §280. 
Gaiha  Co.  v.  Holcomb,  7  Ohio,  232. 

§380. 
Galpin  v.  Abbott,  6  ^lich.  17.    §§  207, 

401,  456. 
Galusha   v.   Cobleigh,  13  N.  H.   79. 

§424. 
Galveston  v.   Menard,  23  Tex.   349. 

§386. 
Galveston,  etc.  R'y  Co.  v.  Dunlav^-,  56 
Tex.  256.     §  452. 

V.  Gross,  47  Tex.  428.  §§  331, 
332. 

V.  Kutac,  37  Am.  &  Eng.  R.  R 
Cas.  470 ;  72  Tex.  643.   §  371. 

v.  Le  Gierse,  51  Tex.  189.    §  371. 
Galway  Presentments,  Ex  parte,  9 

W.  R  C.  L.  114.     §  158. 
Gamble  v.  Beattie,  4  How.   Pr.  41. 

§133. 
Ganssby  v.  Perkuas,   30    Mich.  492. 

§§  373.  374. 
Gantz  V.  Toles,  40  Mich,  725.    §  114. 
Garaty  v.  Du  Bose,  5  S.  C.  493.    §  422. 
Garby  v.  Harris.  7  Ex.  591.     §  242. 
Gardenhire  v.  McCombs,  1  Sneed,  83. 

§482. 
Gardner  v.  Cole,  21  Iowa,  205.     §  184. 

V.  CoUector,  6  Wall  499.  §§  41, 
44,  54,  104,  110,  160, 182,  183, 
294,  300. 

V.  Collins,  2  Pet  93.     §§  191,  236. 

V.  Eberhart  82  111.  316.     §  298. 

V.  Heyer,  2  Paige,  11.     §  371. 

V.  Johnson,  22  Ala.  494.     §  111. 

V.  Lewis,  7  Gill,  377.     §§  12,  192. 


xlviii 


CASES   CITED. 


Gardner  v,  Lucas,  L.  E.  3  App.  Cas. 

583.     §§  306,  482. 
Garforth  v.   Fearon,   1    H.   BL   327. 

§  429. 
Gargorave  v.  Every,  1   Lutrvv.   C.   P. 

260.     §  424. 
Garland,    Ex    parte,    4   Wall.    390. 

g§  465,  467. 
Gai-land  v.  Carlisle,  2  Cr.  &  M.  30. 
§307. 

V.  Hickey,  75  Wis.  178.    §  167. 
Garrigns  v.  Board  of  Com'rs,  69  Ind. 

66.     §  211. 
Garrison  v.   Cheeney,   1  Wash.  T'y> 

489.    §  482. 
Garvey  v.  People,  6  CaL  554.     §  470. 
Garvin  v.  State,  13  Lea,  162.    §§  87, 
89,  92,  211. 

V.  Wells,  8  Iowa,  286.     §  296. 
Gas  Co.  V.  Parkersburg,  30  W.  Va,  435. 
§  384. 

V.    Wlieeling,     8   W.   Va.     320. 
§215. 
Gaskin  v.   Anderson,   55  Barb.  259. 
§102. 

V.  Meek,  42  N.  Y.  186.     §§  80,  95, 
198. 
Gaston  v.  Merriam,  33  Minn.    271. 
§§  155,  256. 

V.  Stott,  5  Ore.  48.    §  450. 
Gates  V.  Jolinson  Co.  36  Tex.  144. 
§298. 

V.  McDaniel,  3  Port.  356.    §  342. 

V.  Salmon,   35  CaL  576.     §§  215, 
239,  240. 

V.  Shugrue,  35  Minn.  392.     §  138. 
Gatty  V.  Fry,  L.  R.  2  Ex.  Div.  265. 

§324 
Gaul  V.  Brown,  53  Me.  496.    §§  163, 

166. 
Gauntlet,    The,   L.  R.   3  Adm.   381. 

§§  352,  404 
Gayles'  Heirs  v.  Williams,  7  La.  162. 

§§  138,  283. 
Gearhart   v.   Dixon,   1  Pa.  St  224. 

§  333. 
Geddes  v.  BroTVTi,  5  Phila.  180.  §  319. 
Gedney  v.  Tewksbury,  3  Mass.  307. 

§325. 


Gee  V.  Thompson,  11  La.  Ann,  657. 

§220. 
Geebrick  v.  State,  5  Iowa,  491.  §§  67, 

72. 
Geiger    v.    Brown,  4   McCord,   423. 

§425. 
Geisen    v.    Heiderich,    104    DL    537. 

§146. 
Gelpcke    v,   Dubuque,   1  WaU.  175. 

§§  185,  186. 
Genkinger  v.  Commonwealth,  32  Pa. 

St.  99.     §  166. 
Gentile  v.  State,  29  Ind.  409 ;  11  id, 

224     §§  108,  117,  345. 
George  v.  Board  of  Education,  33  Ga. 

344     §§  254,  258. 
Georgia  v.  Atkins,  1  Abb.  (U.  S.)  22. 

§§  239,  247. 
Geny    v.    Stoneham,   1  AUen,   319. 

§206. 
Geter  v.  Commissioners,  1  Bay,  354. 

§394 
Gholston    V.    Gholston,  54    Ga.    285. 

§464 
Gibbons  v.  Brittenrmi,  56  Miss.  232. 
§§  141,  145,  153,  154  160,  215, 
220. 

V.  Ogde'n,  9  Wheat.  191.    §§  222, 
223. 
Gibbs  V.  Morgan,  39  N.  J.  Eq.  126. 

§128. 
Gibhn  v.  Jordan,  6  Cal.  416.    §  317. 
Gibson     v.    Belcher,    1'    Bush,    145. 
§§  103,  170. 

V.  Commonwealth,  87  Pa.  St  253. 
§207. 

V.  Hibbard,  13  Mich.  215.    ^g  164, 
474 

V.  Jenny,  15  Mass.  205.     §§  139, 
290,  324 

V.  Marquis,  29  Ala.  668.     §  400. 

V.  Midland  R'y  Co.   15    Am.   & 
Eng.  R.  R.  Cas.  507.   §  371. 

V.  Preston,  L.  R.  5  Q.  B.  219.  §  202. 

V.  State,  16  Fla.  291.    §§  101,  132. 

V.  State,  38  Ga.  571.  §§  208,  351. 
Giddings  v.  Cox,  31  Vt  607.  §  154 
Gilford  V.   New  Jersey  R.  R.  Co.  2 

Stockt  172.    §  78. 


CASES   CITED. 


xiix 


Gilbank  v.  Stephenson,  30  Wis.  157. 

§154. 
Gilbert  v.  Columbia  T.  Co.  3  Jolins. 
Cas.  107.     §  440. 
V.  Flint,  etc.  R.  R.  Co.  51  Mich- 

488.     §301. 
V.  Moliue  Water  Power  Co.   19 
Iowa,  319.     §  298. 
Gilfillau    V.    Hobart,  35  Minn.   185. 

§463. 
Gilkey  v.  Cook,  60  Wis.  133.    §§  107, 

389,  410. 
GUlelaiid    v.  Schuyler,  9  Kan.  569. 

§§  136,  165,  225,  226. 
GUlespie  v.    White,    16   Jolin.    117. 

§§  111,  113. 
GiUiland  v.  Sellers,  3  Ohio  St.  333. 

§398. 
Gillitt  V.   McCarthy,   34  Minn.   318. 

§§  93,  93. 
Gilman  v.  Philadelpliia,  3  Wall  713. 

§197. 
Gilmer  v.   Lime  Pomt,    19  CaL  47. 

§§  307,  387. 
Gihnore  v.  Shuter,  2  Lev.  227.    §  463. 
"  Gin  "  Webb  v.  Knight,  2  Q.  B.  Div. 

530.    §  254 
Girard,  etc.   Co.  v.  Pliiladelphia,  88 

Pa.  St  393.     §  340. 
Girardeau  v.  Riley,  53  Mo.  434.    §  63. 
Girdlestone  v.  AUan,  1  B.  &  C.  61. 

§463. 
Girdner  v.  St^hens,  1  Heisk.   380. 

§10. 
Gist  V.  Drakely,  3  Gill,  330.     §  342. 
Gittiugs  V.  Crawford,  Taney's  Dec.  1. 

§399. 
Given  v.  Simpson,  5  Me.  303.    §§  391, 

395. 
Gladney  v.  Deavors,  11  Ga,  79.   §  335. 
Glaiis  V.  State,  30  Ala.  529.    §  356. 
Glassmgton  v.  Rawlins,  3  East,  407. 

§  112. 
Glenn  v.  Lopez,  1  Harper.  105.    §  323. 
Glentz  V.  State,  38  Wis.  549.    §§  133, 

134. 
Glidden  v.  Strupler,  52  Pa.  St  400. 

§458. 
GUdeweUv.Martin,51Ark.559.  §330. 


Glover  v.  Alcott,  11  Mich.  470.  §§  290, 

400. 
Goddard    v.    Boston,    20   Pick.  407. 
g  322. 
V.  Gloninger,  5  Watts,  209.  §  309. 
Goeuen  v.  Schraeder,   8  Minn.   387. 

§478. 
Gohen    v.    Texas  Pac.  R  R.  Co.   2 

Woods,  346.    §§  145,  202. 
Goillotel  V.  Mayor,  etc.  87  N.  Y.  441. 

§  13:5. 
Golden  v.  Prince,  3  Wash.  313.  §  474 
Golden  Canal  Co.  v.  Bright  8  Colo. 

144.     §§  93,  95. 
Goldsborough     v.     United     States, 

Taney's  Dec.  83.    §  308. 
Goldsmid  v.  Hampton,  5  C.  E.  (N.  S.) 

94    §  212. 
Goldsmith  v.  Georgia  R.  R  Co.  63 
Ga.  485.     §  93. 
V.  Rome  R  R  Co.  62  Ga.  473. 

§88. 
V.  Sa%\'yer,  46  CaL  209.    §§  295, 
296. 
Gonder  v.  Estabrook,  33  Pa.  St  374 

§424 
Goode  v.  Webb,  52  Ala.  452.    §  111. 
GoodeU's  Case,  39  Wis.  232.    §  321. 
Goodell    V.  Jackson,  20   John.  706. 

§337. 
Goodenow  v.  Buttrick,  7  Mass.   140. 

§  154 
Gooding  v.  Morgan,  70  IlL  275.    §  181. 
Gooduo    v.   Oshkosh,    31    Wis.    127. 

§§  133,  137,  154  162,  168. 
Goodon   V.    Tweedy,    74   Ala.    232. 

§302. 
Goodrich    v.   Russell,   42  N.  Y.  177. 

§286. 
Goodsell  v.  Boynton,  2  IIL  555.   §  104 
Goodwin  v.  Appleton,  22  Ikle.   453. 
§§  398,  306. 
V.  MoiTis,  9  Ore.  333.    §  184 
Gordon   v.  Comes,  47    N.    Y.    617. 
§§  170,  177. 
V.  Hobart,  2  Sumu.  401.    §  185. 
V.  Inghram,  1  Grant's  Cas.  153. 

§10. 
V.  People,  44  Mich.  485.    §  13a 


1 


CASES   CITED. 


Gordon  v.  State,  4  Kan.  489.     §  225. 
V.  Wansey,  19  Cal.  82.     §  454. 
V.  Winchester  Building  Asso.  12 
Bush,  110.     §456. 
Gordon's  Ex'r  v.  Mayor,  etc.  5  Gill, 

231.     §  364. 
Gore  T.  Brazier,  8  Mass.  523.     §  324. 
Gorhani  v.  Bishop  of  Exeter,  15  Q.  B. 
69.    §§  307,  312. 
V.  Bishop  of  Exeter,  Moore's  Case 

of,  462.     §§  292,  300. 
V.  Luckett,  6  B.  Mon.  146.  §§  137, 

141,  154,  204. 
V.  Springfield,  21  Me.  58.    §§  107, 

108,  193. 
V.  Wing,  10  Mich.  486.     §§  111, 
114. 
Gorman  v.   Hammond,    28    Ga,   85. 
§§  142, 143. 
T.  Pacific    R.    E,    26    Mo.    441. 
§206. 
Gormley   v.    Clark,   134   U.   S.   338. 
§§  185, 187. 
V.  Taylor,  44  Ga.  76.    §  26. 
Gorton  v.  Champneys,  1  Bing.  301. 

§§  360,  445. 
Goshen  v.  Stonington,  4  Conn.  225. 

§§169,463.  - 
Goshom  V.  Purcell,  11  Ohio  St.  641. 

§§  206,  483. 
Goslmg   V.    Veley,    12    Q.    B.    407. 

§  362. 
Goss  V.  Cahill,  42  Barb.  310.     §§  400, 
442. 
V.  Goss,  29  Ga.  109.    §  341. 
Gossler    v.    Goodrich,    3    Cliff.    71. 

§137. 
Gough  V.  Dorsey,  27  Wis.  119.   §§  229, 
395. 
V.  Pratt,  9  Md.  526.    §§  184,  229. 
Gould  V.  Wise,  18  Nev.  253.    §  333. 
Cover's  Case,  L.  Pt,  1   Ch.  Div.  198. 

§238. 
Governor  v.  Howard,  1  Mui-phy,  465. 
§§  166,  225. 
V.  McEwen,  5  Humph.  241.     §  4. 
V.  Porter,  5  Humpk  165.    §§  200, 

201,  206,  229. 
V.  Roby,  34  Ga.  176.     §  334 


Grace  v.    Donovan,    12    Minn.    580. 

§§  167.  220. 
Graff  V.  Evans,  L.  R.  8  Q.  B.  Div.  377. 

§350. 
Grafiins  v.  Commonwealth,  3  Pen.  & 

W.  502.     §  333. 
Graham,    Ex    parte,    13    Rich.   277. 

§§  164,  463. 
Graham  v.    Bradbury,    7    Mo.    281. 
§393. 
V.  Charlotte,  etc.  R.  R.  Co.  64  N. 

C.  631.     §  260. 
V.  Chicago,  etc.  R.  R.  Co.  53  Wis. 

473.     §§  164,  166. 
V.  Long,  65  Pa,  St.  383.     §  458. 
V.  Van    Wyck,     14     Barb.     531. 
§§  290,  333. 
Grammar  School  v.  Burt,  11  Vt  632. 

§473. 
Grand  Rapids  Electric  Light,  etc.  Co. 
V.  Grand  Rapids,  etc.  Co.  33  Fed- 
Rep.  659.     §§  378,  384. 
Grand  River  B.  Co.  v.  Jarvis,  30  IMicli. 

308.     §  332. 
Grant    v.    Courter,     24    Barb.    242. 
§75. 
V.  Grant,  12  S.  C.  29.     §  165. 
Grant  County  v.   Sels,   5  Ore.   243. 

§138. 
Graves  v.  Keaton,  3  Cold.  8.    §§  181, 
295. 
V.  McWilliams,  1  Pin.  491.    §  120. 
V.  Otis,  2  Hill,  466.     §400. 
Gravett  v.  State,  74  Ga  191.    §  246. 
Gray  v.  Bennett,  3  Mete.  522.    §  360. 
v.  Gray,  34  Ga  499.     §  320. 
V.  Hook,  4  N.  Y.  449.    §  336. 
V.  La  Fayette  Co.  65  Wis.  507. 

§364. 
V.  Larrimore,  2  Abb.  (U.  S.)  542. 

§394. 
V.  Nations,  1  Ai-k.  557.    §  400. 
V.  Obear,  54  Ga  231.    §  168. 
V.  Regina,    11    CI.    &    Fin.    427. 
§334. 
Great  Centi-al  Gas.  Cons.  Co.  v.  Clarke, 
13  Com.  B.  (N.  S.)  838.     §  159. 
V.  Clarke,  11   C.  B.  (N.  S.)  814. 
§139. 


OASES  CITED. 


Great  Western  R'y  Co.  v.  Swindon, 

L.  R  9  App.  Cas.  808.     §§  267,  269. 

Greaton  v.  Griffin,  4  Abb.  Pr.  (N.  S.) 

310.     §§  87,  88. 
Green's  Estate,  4  McL  Cli.  349.    §§  378, 

398. 
Green    v.    Abraham,    43    Ark.    420. 

§§  483,  484. 
V.  Anderson,  89  ]\Iiss.  359.    §§  463, 

464,  481. 
V.  Biddle,  8  Wheat  93.    §§  206, 

471,  472,  474,  476. 
V.  Cheek,  5  Ind.  105.    §§  215, 237, 

240. 
V.  Commonwealth,  12  Allen,  155. 

§§  283,  428. 
V.  Dikeman,  18  Barb.  535.    §  464 
V.  Goodall,  1  Cold.  404.    §  295. 
V.  Graves,  1  Doug.  351.     §§  40, 

322. 
V.  Hudson  R  R  R  Co.  32  Barb. 

25.    §371. 
V.  Lord  Penzance,  L.  R  6  App. 

Cas.  675.     §  399. 
V.  Mayor,  etc.  2  Hilt.  203.    §  343. 
V.  Mayor,  etc.,  R  K  Charlt  368. 

§88. 
T.  Neal,  6  Pet.  291.    §§  187,  191. 

314,  316. 
V.  Rugely,  23  Tex  539.    §  184 
V.  Shumway,  39  N.  Y.  418.  §  470. 
V.  State,  59  Md.  123.     §§  218,  234, 

239. 
T.  United   States,    9  Walk    655. 

§333. 
V.  Van    Buskh-k,    7    Walk     139. 

§294 
V.  Weller,  32  Miss.  704    §§  28, 34 

183,  218,   219,  237,  247,  254 

294 
T.  Wood,  7  Q.  B.  178.   §§  252,  431. 
Greencastle  Southern  T.  Co.  v.  State, 

28  Ind.  382.      §g  132,  314 
Greencastle  Townsliip  v.  Black,  5  Ind. 

566.    §  6G. 
Greene,  Ex  parte,  29  Ala  52.    §  390. 
Greene  v.  Briggs,  1  Curtis,  311.    §  5. 
•Greenfield    v.    Doitis,  1  Sneed,  550. 
§478.    ,, 


Greenhow    v.    James,    80   Va.    636. 

§407. 
Greenlaw  v.  Greenkiw,  12  N.  H.  200. 

§482. 
Greenough  v.  Greenough,  11  Pa.  St. 

489.     §§  6,  10,  201,  395,  480,  484 
Greenville,  etc.  R.  R.  Co.  v.  Cathcart, 

4  Rich.  89.    §  399. 
Greenwade  v.   Green  wade,  3   Dana, 

495.    §184 
Greenwood  v.   Greenwood,    28    Md. 

370.    §291. 
Greer    v.   Rowley,   1    Pittsburgh,   1. 
§428. 

V.  State,  22  Tex.  588.     §§  144, 
166. 

V.  State,  54  ISIiss.  378.    §  40. 
Gregoiy's  Case,  6  Rep.  196.     §§217, 

222. 
Gregory  v.   German  Bank,  3  Colo. 

323.     §  163. 
Greig  v.  Bendeno,  EL  BL  &  EL  13a 

§213. 
Greiner  v.  Klein,  28  Mich.  17.    §  256. 
Grenada  Co.  Supervisors  v.  Brogden, 

112  U.  S.  261.     §§  321,  407. 
Grey  v.  Mobile  Ti-ade  Co.  55  Ala.  387. 

§§  164  166. 
Grider  v.  Tally,  77  Ala.  422.     §  306, 
Griffin's    Case,     Chase's    Dec    364 

§  323. 
Griffin,  In  re,  25  Tex.   (Supl't)  62a 

§331. 
Griffin  v.  Cimningham,  20  Graft  31. 
§§  10,  119. 

V.  Forrest  49  Mich.  309.    §  111. 

V.  Leshe,  20  Md.  15.     §g  434  437. 

V.  Stote,  39  Ala.  541.     §  166. 
Griffing  v.  Gibb,  2  Black,  519.    §  185. 
Griffith   V.    Beasly,    10    Yerg.    434. 
§184 

V.  Carter,  8  Kan.  565.    §  28a 

V.  Wells,  3  Denio,  226.    §  336. 
Grigsby  v.  BaiT,  14  Bush,  330.    §  137. 

V.  Peak,  57  Tex.  142.     §  10. 
Grinad  v.  State,  34  Ga  270.    §  107. 
Grmer,  In  re,  16  Wis.  42a     §  68. 
Griswold   v.    Pitcairn,    2    Conn.   85. 

§  297. 


lii 


CASES   CITED. 


Grob  V.  Cushman,  45  111.  124     §§  52, 

183,  300. 
Groesch  v.  State,  42  Ind.  547.    §§  75, 

124. 
Groflf,  Ee,  21  Neb.  647.     §  169. 
Grogan  v.  San  Francisco,  18  Cal.  590. 

§472. 
Grooms   v.    Hannon,    59   Ala.    510. 

§§  350,  351,  358. 
Gross  V.  Fowler,  21  CaL  892.    §§  247, 

253. 
Grosvenor    v.    MagiU,    37    EL    239. 

§110. 
GroTer  v.  Fox,  36  Mich.  453.    §  390. 

V.  Trustees,  etc.  45  N.  J.  L.  399. 
§§  84,  85,  87,  88. 
Grubbs  v.  State,  24  Ind.  295.    §g  78, 

103,  316. 
Grumley  v.  Webb,  44  Mo.  444.  §§  275, 

365. 
Guerard  v.  PoUiill,  R  M.  Charlt.  237. 

§325. 
Guidry  v.  Rees,  7  La.  278.     §  463. 
Giiild  V.  Chicago,  82  IlL  472.    §  72. 

V.  Rogers,  8  Barb.  502.    §  478. 
Guilford  v.  Cornell,    18   Barb.    615. 
§473. 

V.  Supervisoi-s,  13  N.  Y.  143.  §§  11, 
473. 
GuKck  V.  Loder,  13  N.  J.  L.  68.  §479. 
Gulf,  etc.  R'y  Co.  v.  Levy,  12  Am.  & 

Eng.  R.  R  Cas.  90.    §  371. 
GuiUeaume  v.   MiUer,  14  Rich.  118. 

§  393. 
Guim  V.  Barry,  15  WalL  610.    §§  206, 

477. 
Gunnestad  v.  Price,  L.  R  10  Ex.  69. 

§268. 
Gunnison  Co.  Com.  v.   Owen,  7  Colo. 

467.    §169. 
Gunter  v.  Lecky,  30  Ala,  591.    §§208, 

290,  366. 
Gut  V.  State,  9  WalL  35.    §§  185,  468. 
Guthrie  v.  Fisk,  3  B.  &  C.  182.    §§  410, 

414. 
Gwinner  v.  Lehigh,  etc.  R  R  Co.  55 

Pa  St  126.     §  145. 
Gwyn  V.  Hardwicke,  1  H.  &  N.  53. 

§308. 


Gwynne  v.  Burnell,  6  Bing,  N.  C.  559, 
§§  196,  238. 
V.  BumeU,  7  CL  &  F.  696.  §§430, 
431.  . 
Gyger's  Estate,  65  Pa.  St  311.    §§  233, 
259,  267. 

Hackett    v.    Smelsley,  77   lU.    109. 

§§  374,  375. 
Hackley  v.   Sprague,  10  Wend.  114. 

§464. 
Hadden   v.   Collector,    5  WalL  110. 

§§  196,  210,  211,  235,  407. 
Hadley   v.  Peabody,   13    Gray,  200. 
§428. 
V.  Perks,  L.  R  1  Q.  B.  457.  §§  256, 
262. 
Haentze  v.  Howe,  28  Wis.  293.   §  240. 
Hagerman  v.  Ohio  Building,  etc.  Co. 

25  Ohio  St  186.    §  114. 
Hagerstown  v.  Seliner,  37  Md.  180. 

§206. 
Hahn  v.  Salmon,  20  Fed.  Rep.  801. 
§360. 
V.  United  States,  107  U.  S.  402. 

§307. 
V.  United  States,  14    Ct  of  CL 
305.    §309. 
Haigh  V.  Corporation  of  Sheffield,  L, 

R.  10  Q.  B.  102.    §  280. 
Haight  V.  Gay,  8  CaL  297.    §  397. 

V.  HoUey,  3  W^end.  258.    §  334. 
Hakes    v.  Peck,  30    How.  Pr.   104. 

§333. 
Halbert  v.  Skyles,  1  A.  K.  Marsk  369, 

§193. 
Haldane    v.   Beauclerk,    3   Ex.  658. 

§  256. 
Halderman  v.  Young,  107  Pa.  St  324. 

§322. 
Hale  V.  Angel,  20  John.  342.    §  207. 
V.  N.  J.  St  Nav.  Co.  15  Conn.  539. 
§§  190,  192. 
Hales  V.  Owen,  2  Salk.  625.    §  115. 
Haley  v.  Petty,  42  Ark.  392.    §  454. 
V.  Philadelphia,    68   Pa.  St  45. 

§206. 
V.  Young,  134  Mass.  364.    §  115. 
Hall,  Ex  parte,  1  Pick.  261.    §  247. 


CASES    CITED. 


lUl 


HaU  V.  Bray,  51  Mo.  288.    §  117. 
V.  Byrne,  1  Scam.  140.    §  278. 
V.  Cassidy,  25  Miss.  48.    §§  111, 

113. 
V.  Goodwyn,  4  McCord,  476.  §  10. 
V.  Newcomb,  3  Hill,  233 ;    7  id. 

416.     §  316. 
V.  Pillow,  31  Ark.  32.     §  184. 
V.  State,  20  •Ohio,  7.     g§  208,  271, 

350. 
V.  Wisconsin,  103  U.  S.  5.     §  472. 
V.  Woodson,  13  Mo.  462.    §  184. 
HaUeman  v.  Halleman,  65  Ga.  476. 

§93. 
Hallett  V.  Novion,  14  Jolin.  273.  §  336. 
HaUock  V.  Holliugshead,  49  N.  J.  L. 

64.     §129. 
Halloran  v.  T.  etc.  R  R.  Co.  40  Tex. 

465.     §  480. 
Ham  V.  Board  of  Police,  142  Mass.  90. 
§333. 
V.  Ham,  39  Me.  263.    §  298. 
V.  McClaws,  1  Bay,  92.     §  322. 
V.  Sa^vyer,  38  Me.  37.     §  308. 
V.  State,  7  Blackf.  314.     §  136. 
V.  Steamboat  Hamburg,  2  Iowa, 
460.    §§204,327. 
Hamilton    v.    Buxton,    6    Ai-k.    24 
§220. 
V.  McNeil,  13  Gratt  394.    §  307. 
V.  Smitli,  3  Murphy,  115.     §  427. 
V.  Steamer  R.   B.   Hamilton,  16 
Ohio  St  428.     §  232. 
Hamlet   v.   State,   5   Jones'    L.    36. 

§106. 
Hamlyn  v.  Nesbit,  37  Ind.  284  §  138. 
Hammer  v.   State,  44  N.  J.  L.  667. 

§§  122,  127.  129. 
Hammersmith,  etc.  R'y  Co.  v.  Brand, 

L.  R.  4  H.  L.  Cas.  171.    §  233. 
Jiammock  v.  Loan  &  Trust  Co.  105 

U.  S.  77.     §  282. 
.Hammond  v.  American  Ins.  Co.  10 
Gray,  306.     §  115. 
V.  Haines,  25  Md.  541.     §  75. 
V.  Lesseps,  31  La.  Ann.  337.  §  88. 
V.  Webb,  10  Mod.  281.     §  400. 
Hampton  v.  Coninionwealtli,  19  Pa, 
St  329.     §g  11,  163,  165,  464 


Hanchett  v.  Weber,  17  IlL  App.  114 

§334 
Handley  v.  Cunningham,  12  Bush, 

402.    §112. 
Handy  v.  Hopkins,  59  Md.  157.  §  342. 
Haney  v.  State,  34  Ark.  263.     §§  238, 

260. 
Hankins  v.  People,  106  IlL  628.  §§  231, 

325,  356. 
Hanley  v.  Donoghue,   116  U.   S.   1. 

§g  185,  293,  294 
Hanlon  v.  Board  of  Conomissioners, 

53  Ind.  123.     §§  124,  127. 
Hanmann  v.  Mmk,  99  Ind.  279.  §  299. 
Hannibal,  etc.  R  R  Co.  v.  Packet  Co. 

125  U.  S.  260.    §  378. 
Hannum  t.   Bank  of   Tennessee,   1 
Cold.  398.     §  206. 
V.    TourteUott     10    Allen,    494 
§  115. 
Hani-ick    v.    Andrews,    9    Port    9. 

§^  190.  191. 
Hanson  v.  Dunn,  76  Wis.  455.    §  459. 
Happel    V.    Brethauer,    70    IlL    166. 

§§  43,  45,  183. 
Harbeck  v.    Mayor,   10    Bosw.    366, 

§  137. 
Harbord  v.  Perigal,  5  T.  R  210.   §  115. 
Hardeman  v.  Downer,   39  Ga.   425. 

§  476. 
Hardenburgh  v.  Lakin,  47  N.  Y.  109. 

§483. 
Harding   v.    Bader,    75    Mich.    316. 
§365. 
V.  Strong,  42  HL  148.     §  295. 
Hardmann  v.  Bowen,  39  N.  Y.  196. 

§  459. 
Hardy,  Ex  pai-te,  68  Ala.  303.    §  311. 
Hardy  v.  Bern,  5  T.  R  636.     §  462. 
V.  Heai-d,  15  Ark.  184.     §  453. 
V.  Ryle,  9  Barn.  &  Cr.  603.    §  112. 
Hai-e  V.  Hare,  10  Tex.  355.    §  482. 
Hai-ford  v.  United  States,  8  Ci-anch, 

109.    §138. 
Hargi-ave  v.  Weber,  60  IMicli.  59.  §  88. 
Harker  v.  Addis,  4  Pa.  St  515.    §  115. 

V.  Harker,  3  Har.  57.     §  400. 
Harlan  v.  Sigler,  Morris,  39.    §  169. 
V.  State,  41  Miss.  566.     §  20. 


liv 


CASES    CITED. 


Harold  v.  State,  16  Tex.  A  pp.  157. 

§154. 
Harpending  v.  Dutch  Church,  16  Pet. 

493.     §g  185,  186. 
V.  Haight,  39  CaL  189.     §  380. 
Han-eU  v.  HaiTell,  8  Fla.  46.    g§  133, 

215,  288. 
Harriet,  The  Schooner,  1  Story,  251. 

§§  349,  350,  356. 
Harrington  v.  Du  Chatel,  1  Bro.  C.  C. 

124.     §  429. 
v.  Harrington's    Estate,    53   Vt 

649.     §  160. 
V.  People,  6  Barb.  607.    §  454. 
V.  Rochester,     10     Wend.     547. 

§§  137,  160,  220. 
V.  Smith,  28  Wis.  43.     g§  229.  256. 
V.  Wands,  23  Mich.  385.    §  135. 
Han-is  v.  AUnutt,  12  La.  465.   §  184. 
V.  Gest,  4  Ohio  St.  469.    §  454' 
V.  Glenn,  56  Ga.  94    §  206. 
V.  Jenns,    9    C.    B.    (N.  S.)  152. 

§152. 
V.  People,  59  N.  Y.  602.    §§  78,  84, 

88,  94 
V.  Runnells,  12  How.  79.     §  336. 
V.  Rutledge,  19  Iowa,  388.    §  164 
V.Saunders,     4    B.    &    C.    411. 

§426. 
V.  Supervisors,     33     Hun,     279. 

§§  168,  170. 
V.  Townshend,  56  Vt  716.    §§  164, 

166,  167,  225. 
V.  Vanderveer,  21  N.  J.  Eq.  424. 

§397. 
V  White,  81  N.  Y.  532.    §  190. 
Harrisbui-g  v.  Sheck,  104  Pa.  St.  53. 

§157. 
Harrison,  Ex  parte,  4  Cow.  63.    §§  215, 

239,  241. 
Harrison  v.  Allen,  Wythe  (Va,),  291. 

§166. 
V.  Gordy,  57  Ala.  49.    §§  46,  47. 
V.  HaiTison,  39  Ala.  489.    §  426. 
V.  Harrison,  20  Ala.  629.     §  12. 
V.  James,  2  Chifcty,  547.    §  420. 
V.  Leach,  4  W.  Va.  383.    §§  207, 

367. 
V.  Sayer,  28  Mch.  32.    §  256. 


Harrison  v.  Sayer,  27  lilich.  476.  §  115 

V.  Walker,  1  Ga.  32.    §§  138,  168, 
288. 

V.  WiUis,  7  Heisk.  35.    §  307. 

V.  Young,  9  Ga,  359.    §§  333,  378, 
379,  386. 
Hart  V.  Bodley,  Hardin,  98.    §  298. 

V.  Kennedy,  14  Abb.  Pr.  432 ;  15 
id.  290.     §§  259,  267. 

V.  Reynolds,    3    Cow.    42,    note. 
§451. 

V.  Reynolds,  1  Heisk.  208.     §  229. 

V.  State,  40  Ala,  32, 206.     §  468. 

V.  State,  55  Lid.  591.    §§  298, 306. 

V.  Walker,  31  Mo.  26.    §§  111,  113. 
Hartford  Bridge  Co.  v.  Union  Ferry 

Co.  29  Conn.  210.     §§  331,  380. 
Hartford,  etc.  R.  R.  Co.,  Re,  65  How. 

Pr.  133.     §  387. 
Hartford  Fire  Las.  Co.  v.  Owen,  30 
Mich.  441.    §394 

V.  Raymond,  70  Mich.  485.    §  95. 
Hartley  v.    Hooker,    2   Cowp.    523. 

§396. 
Hartman  v.  Greenhow,  102  U.  S.  672. 

§472. 
Hartung   v.    People,    22   N.  Y.  95. 
§§  164,  166. 

V.  People,  26  N.  Y.  167.    §§  467, 

470. 

Harvey  v.  Tyler,  2  WaJL  328.    §  206. 

HarweU  v.  Steel,  17  Ala.  372.    §  427. 

Hasbrouck  v.  Shipman,  16  Wis.  296. 

§478. 
Hascall   v.    Madison   University,    8 

Barb.  174     §  456. 
Haseltine  v.  Hewitt,    61    Wis.    121. 

§322. 
Haskel  v.  Burlmgton,  30  Iowa,  232. 

§125. 
Hasketh  v.  Lee,  2  Saund.  84    §  194. 
Hassenplug's  Appeal,  106  Pa.  St  527. 

§§  207,  437. 
Hastings  v.  Aiken,  1  Gray,  163.  §  168. 
Hathaway  v.  Johnson,  55  N.  Y.  93. 

§208. 
Hatch  V.  Burrows,  1  Woods,  439.  §  20. 
Hatchett  v.   BUhngslea,  65  Ala.  16. 

§154 


CASES    CITED. 


Hatfield  v.  Commonwealth,  120  Pa. 

St  395.    g  103. 
Hatton  V.  Wier,  19  Ala.  127.    §  400. 
Haven  v.  Foster,  9  Pick.  112.    §  426. 
Hawes  v.  Clement,  64  Wis.  152.  §  393. 
Hawkins  v.  Barney's  Lessee,  5  Pet 
457.     §  472. 
V.  Filkins,  24  Ark.  286.     §  20. 
V.  Gathercole,  6  Do  G.  K  &  G.  1. 

§  292. 
T.  Great  W.  R'y  Co.  17  Mich,  57. 
§§  271,  373. 
Hawthorne  v.  Calef,  2  WalL  10.  §  474 
Hay  V.  Lord  Provost   of    Perth,  4 

Macq.  Sc.  App.  544.     §  414. 
Haybui-n's  Case,  2  DalL  409.     §  10. 
Hayden's  Case,  3  Rep.  7.    §  418. 
Hayes   v.    Hanson,    13   N.    H.   284. 
§§  283,  288. 
V.  Phelan,  4  Hun,  733.     §  371. 
V.  State,  55  Ind.  99.     §  143. 
Haynie  v.  State,  32  Miss.  400.      §  350. 
Hays  V.  Hays,  5  Rich.  31.    §  400. 
v.  Hunt,  85  N.  C.  303.    §  390. 
V.  Miller,  1  Wash.  T'y,  143.    g  401. 
V.  Richardson,   1  GiU  &  J.  366. 
§284. 
Hay  ward  v.  Gunn,  82  IlL  885.    §  146. 
V.  Pilgi-im  Society,  21  Pick.  270. 
§385. 
Hay\vood  v.  Mayor,  12  Ga.  404.  §  157. 
Hazelton  v.  Valentine,  113  Mass.  472. 

§190. 
Hazen  v.  Union  Bank,  1  Sneed,  115. 

§124. 
Head  v.  Providence  Las.  Co.  2  Cr.  127. 
§§  381,  454. 
V.  Ward,  1  J.  J.  :Marsh.  280.  §  206. 
Heald  v.  State,  36  3Ie.  62.     §  166. 
Healey    v.     Dudley,     5     Lans.    115. 

§§  120,  129,  198. 
Heanley  v.  State,  74  Ind.  99.    §  124 
Heard  v.  Baskervile,  Hob.  232.    §  210. 

v.  Heard,  8  Ga.  380.    §  104 
Heara  v.  Brogau,  64  Miss.  334   §  138. 
V.  Ewm,  3  Cold.  399.     §§  207,  290, 
393. 
Hearne  v.  Garton,  2  E.  «&;  E.  66.  §§  355, 
429. 


Heath,  Ex  parte,  3  Hill,  42.    §§  202, 

448,  450. 
Heath   v.    Kent  Circuit   Judge,  37 

Mich.  372.     §  397. 
Hebbert  v.  Purchas,  L.  R  3  P.  C.  650. 

§§  137,  300. 
Heckmann  v.  Pinkney,  81  N.  Y.  211. 

§§  154  156. 
Hedger  v.  Rennaker,  3  Met  (Ky.)  255. 

§§  107,  404 
Hedley,  Ex  paiie,  31  CaL  108.    §  260. 
Hedworth   v.    Primate,    Hard-    318. 

§300. 
Hegarty's   Appeal,    75  Pa.  St    50a 

§484 
Heim  v.  Bridault  37  Miss.  209.  §  IBS. 
Heiskell  v.  Mayor,  etc.  65  I^Id,  125. 

§290. 
Helm  V.  Chapman,  66  Cal.  291.  §  240. 
Hemphill  v.  Bank  of  Ala.  6  S.  &  M. 

44    §190. 
Hemstrat  v.  Wassum,  49  Cal  273. 

§  138. 
Henderson's  Distilled  Spirits,  14  WalL 

44    §  361. 
Henderson  v.  Alexander,  2  Gra.  8L 
§411. 

V.  Bise,  3  Starkie,  158.    §212. 

V.  Grilim,  5  Pet  151.    §  187. 

V.  Maxwell,  L.  R  5  Ch.  Div.  892. 
§458. 

V.  Sherborne,   2  M.   &   W.    230. 
§§  143,  358. 
Hendrickson  v.  Fries,  45  N.  J.  L.  555. 
§429. 

V.  Hendrickson,  7  Ind.  13.   §  109. 
Hendrix    v.    Rieman,    6    Keb.    516. 

§§  283,  284 
Henger  v.  Abbott  6  WalL  532.   §  136. 
Hennepin  County  v.  Jones,  18  Minn. 

199.     §  119. 
Henry  v.  Adey,  3  East  22L    §  190. 

V.  Chester,  15    Vt  460.     §§  362, 
365. 

V.  Davis,  13  W.  Va.  230.    §  453. 

V.  Sargeant  13  N.  H.  331.     §  12. 

V.  Tilson,  17  Vt  479.     §^  218,  28a 
Ilenscliall  v.  Schmidtz,  50  Mo.  454 

§§  206,  482. 


Ivi 


CASES    CITED. 


Hensley  v.  Tarpey,  8  Cal.  288.     §  296. 
Henthorn   v.    Doe,    1    Blackf.    157. 

§§  295,  298. 
Hepburn  v.  Griswold,  8  WalL   603. 

§206. 
Herber  v.  State,  7  Tex.  69.    §  470. 
Herbert,  Succession  of,  5  La.  Ann, 

121.    §138. 
Herbert  v.  Easton,  43  Ala.  547.  §  164 
Heridia  V.  Ayers,  12  Pick.  344.  §§  193, 

198. 
Hering  v.  Chambers,  103  Pa.  St.  172. 

§  315. 
Hermance,  In  re,  71  N.  Y.  481.  §§219, 

274, 
Herold  t.  State,  21  Neb.  50.    §§  231, 

402. 
Hen-  V.  Seymour,  76  Ala.  270.    §  138. 
Herrick  v.  Minneapolis,  etc.  R.  R.  Co. 

31  Minn.  11.    §  14. 
Herron   v.    Carson,   26  W.  Va.    62. 

§§  140, 156. 
Herschfeld   v.    Clarke,   11   Ex.  712. 
§420. 

V.  Dexel,  12  Ga.  582.    §  190. 
Hershoff  v.  Treasm-er,  45  N.  J.  L.  288. 

§210. 
Hershy  V.  Latham,  42  Ark.  305.  §  146. 
Hersom's  Case,  39  Me.  476.    §  333. 
Hess  V.  Jolmson,  3  W.  Va,  645.  §  206. 

V.  Pegg,  7  Nev.  23.     §§  117,  256. 
Hester  v.  Keith,   1  Ala.  (N.  S.)  316. 

§§  452,  453. 
Heward  v.  State,  13  Sm.  &  M.  261. 

§§  227,  349. 
Hewes  v.  Reis,  40  CaL  255.    §  365. 
Hewey  v.  Nourse,  54  Me.  256.     §  200. 
Heydon's  Case,  3  Rep.  7b.     §§  162, 

207,  300. 
Hibemia  R.  R.  Co.  v.  De  Camp,  47 

N.  J.  L.  43.    §387. 
Hickman  v.   Alpaugh,  21   Cal.  225. 
§184. 

V.  Gaither,  2  Yerg.  200.     §  316. 
Hickok  V.   Hine,   23    Oluo    St.   523. 

§388. 
Hickory  Tree  Road,  In  re,  43  Pa.  St. 

139.     §g  138,  164,  217. 
Hicks  V.  BeU,  3  CaL  219.    §  397. 


Hicks  V.   Jamison,  10    Mo.  App.   35. 

§§  260,  261. 
Higginbotham  v.  State,  19  Fla.  557. 

§166. 
Higgins  V.  State,  64  Md,  419.    §§  138, 

152. 
Hightstown  v.  Glenn,  47  N.  J.  L.  105. 

§128. 
Hightower  v.  Wells,    6   Yerg.  249. 

§  168. 
Higler  v.  People,  44  Mch.  299.  §  271. 
Higley  v.  Gilmer,  3  Mont.  433.   §  112. 
Hihn  V.  Courtis,  31  Cal.  402.    §  214 
Hildreth  v.  Crawford,  65  Iowa,  389. 
§68. 

V.  Gwindon,  10  Cal  490.    §  454 
HJlke  V.  Eisenbeis,  104   Pa.  St.  514 

§264 
HiU,  Ex  parte,  3  C.  &  P.  225.    §  268. 
HiU,  Ex  parte,  6  Ch.  Div.  63.    §  240. 
Hill,  Ex  parte,  40  Ala.  121.    §  75. 
HiU  V.  Bacon,  43  111.  477.    §  298. 

V.  Berry,  75  N.  Y.  229.    §  373. 

V.  Grange,  1  Plowd.  178.    §  413. 

V.  Grigsby,  32  Cal.  55.     §  184 

V.  Kessler,  63  N.  C.  437.     §  476. 

V.  Mitchell,  5  Ai-k.  608.    §  300. 

V.  Nye,  17  Hun,  467.    §  463. 

V.  Pressley,  96  Ind,  447.    §  114 

V.  Smith,  Morris,  70.     §  137. 

V.  Sunderland,  3  Vt  507.     §  169. 
Hillliouse    V.   Chester,    3    Day,   166. 

§253. 
Hillyard   v.  MiUer,   10  Pa  St.  326. 

§145. 
Hinde  v.  Yattier,  5  Pet.  398.    §  293, 
Hindmarsh  v.  Charlton,  8  H.  of  L. 

Cas.  166.    §  236. 
Hine  v.  Pomeroy,  39  Vt  211.     §  167. 
Hines  v.  Freeholders,  etc.  45  N.  J.  L. 
504    §  127. 

V.  R.  R.  Co.  95  N.  C.  434    §§  210, 
211. 
Hmgle  V.  State,  24  Ind.  28.     §  120. 
Hintermister  t.  First  Nat.  Bank,  64 

N.  Y.  212.     §  349. 
Hinze  v.  People,  92  UL  406.    §§  170, 

173,  176,  180. 
Hiru  V.  State,  1  Oliio  St.  15.     §  47a 


CASES   CITED. 


Ivii 


JUirschburg  v.   People,  C  Colo.   145. 

§§  137,  138,  142,  167. 
Hirst  V.  Rlolesbuiy,  L.  R  6  Q.  B.  130. 

§351. 
Hiss  V.  Baltimore,  etc.  R.  R.  Co.  52 

Md.  242.     §  171. 
Hitcliner   v.    Ehlers,    44    Iowa,    40. 

§377. 
Hoa  V.  Lefranc,   18   La.    Ann.  393. 

§206. 
Hoagiand  v.  Sacramento,  52  CaL  142. 

§206. 
Hofd-e  V.  Silverlock,  12  Q.  B.   624. 

§304. 
!Hobart  v.  Supervisors,   17    CaL  23. 

§§  71,  75. 
Hobbs  V.  Memphis,  etc.  R  R  Co.  9 

Heisk.879.    §294 
Hockaday  v.  Wilson,   1  Head,  113. 

§138. 
Hodges  V.  Baltimore  Pass.  R'y  Co.  58 
Md.  603.     §§  129,  130. 

V.  Biiflfalo,  2  Denio,  110.    §  380. 
Hodsden   v.  Harridge,  2    Williams' 

Saimd-  64a.    §  424 
Hoetzel  V.  East  Orange,  50  N.  J.  L. 

354     §  159. 
Hoffman  v.  Delihanty,  13  Abb.  Pr. 
388.     §  256. 

V.  Duel,  5  Jolm.  232.    §§  111,  113. 

V.  Dunlop,  1  Barb.  185.     §  207. 

V.  Parsons,  27  Minn.  236.    §  101. 

V.  Peters,  51  N.  J.  L.  244    §  222. 
Hogan   V.    Gushing,    49     Wis.    169. 
§398. 

V.  DevUn,  2  Daly,  184    §  462. 

V.  State,  36  AVis.  226.    §  405. 
Hoguet  V.  WaUace,  28  N.  J.  L.  526. 

§§  413,  434  435,  437. 
Holbrook  v.  Bliss.  9  AUen,  69.    §  322. 
Holbrook  v.  Holbrook,  1  Pick.  248. 
§§  212,  213,  215,  241,  246,  288, 
322. 

V.  Nichol,  36  IlL  161.    §  133. 
Solcomb  V.  Davis,  56  IlL  413.    §  75. 
Holdeu  V.  James,  11  Mass.  396.  §§  119, 

169. 
Molding,    Ex   parte,    56    Ala.    458. 

§451. 


HoU  V.  Deshler,  71  Pa.  St  299.  §§  215, 

219. 
Holland  v.  Davies,  36  Ark.  446.  §  450. 

V.  Mayor,  11  Md  186.    §365. 

V.  Osgood,  8  Vt  280.     §  451. 

V.  State,  34  Ga.  455.    §  349. 
Hollenback  v.  Fleming,  6  Hill,  303. 

§§  207,  390. 
HoUey  v.  HoUey,  Lit  SeL  Cas.  505. 

§184 
HoUingsworth  v.  Virginia,  3  DalL  378. 

§165. 
Hollingworth  v.  Palmer,  4  Ex.  267. 

§246. 
Hollis  V.  Francois,  1  Tex.  118.    §  111. 
HoUister  Bank,  Matter  of,  27  N.  Y. 

383.    §374 
HoUister  v.  HoUister  Bank,  2  Keyes, 

245.     §§371,398,399. 
HoUman  v.  Bennett,  44  Miss.  322. 

§§  207,  290,  291,  401. 
Holman's  AppeaL   106  Pa.  St  502. 

§§  264,  301. 
Holman's  Heirs  v.  Bank  of  Norfolk, 

12  Ala.  369.    §194 
Holm  an  v.  Johnson,  1  Cowp.   343. 
§12. 

V.  King,  7  Met  384    §  192. 
Holmes  v.  Broughton,  10  Wend-  75. 
§§  184,  190. 

V.  Carley,  31  N.  Y.  290.    §  437. 

V.  French,  68  Me.  525.    §  165. 

V.  Harrington,  20  Mo.  App.  661. 
§  296. 

v.  Hunt  122  Mass.  505.     §  307. 

V.  JennJson,  14  Pet  540.    §  254 

V.  Paris,  75  Ma  559.    §§  243,  246, 
429. 
Holt  V.  Agnew,  67  Ala,  360.    §  289. 

V.  Green,  73  Pa  St  198.    §  335. 
Holyland  v.  Lewin,  L.  R  26  Ch.  Div. 

266.    §246. 
Holyoke  Co.  v.  Lyman,  15  WalL  500. 

§378. 
Homan  v.  LisweU,  6  Cow.  659.    §  111. 
Home  Ins.  Co.  v.  Swigert,  104  lU.  65a 
§74 

V.  Taxing    District,    4  Lea,  644 
§§  135,  138.  162. 


Iviii 


CASES    CITED. 


Home  Ins.  Co.  v.  United  States,  8  Ct 

of  CL  449.    §  20. 
Homer  v.  Commonwealth,  106  Pa.  St 

221.     §§  137,  143. 
Homestead    Cases,    22    Gratt    266. 

§477. 
Homestead  Cases,  81  Tex.  677.    §  422. 
Honey  v.  Clark,  37  Tex.  686.    §  483. 
Hook  T.  Gray,  6  Barb.  398.    §  336. 
Hooker  v.  Hooker,  10  Sm.  &  K  599. 

§480. 
Hooper  v.  Mayor,  etc.   12  Md.  464. 

§290. 
Hope   V.   Deaderick,    8   Humph.   1. 

§8- 

V.  Gainesville,  72  Ga.  246.    §  96. 

V.  Johnson,  2  Yerg.  123.      §  10. 
Hopkins  v.  Haywood,  13  Wend.  265. 
§239. 

V.  Jones,  22  Ind.  310.    §  206. 

V.  Sandidge,  31  Miss.  668.    §  400. 
Hopt  V.  Utah,  110  U.  S.  574.    §§  466, 

468. 
Horn  V.  Lockhart,  17  Walk  570.    §  20. 
Hombuckle  v.  Toombs,  18  WaU.  648. 

§397. 
Home   V.  RaUroad    Co.  1  Cold.   72. 

§322. 
Horner    v.    State,    1    Oregon,    281. 

§353. 
Horton  v.  Sledge,  29  Ala.  478.    §  184 
Hoskmson  v.  Adkins,    77    Mo.   537. 

§458. 
Hotham    v.    Sutton,    15     Ves.    320. 

§§  246,  276,  279. 
Hough  V.  Wmdus,  L.  R.  12  Q.  B.  Div. 

229.     §  240. 
Houghtalmg    v.    Ball,    19    Mo.    85. 

§§  184,  297. 
Houghton,  Appeal   of,  42   Cal.    35. 

§395. 
Houghton  County  v.  Auditor-Gen.  41 
Mich.  283.     §  365. 

V.  Commissioners  of  St.  L.  O.  23 
Mich.  270.     §  136. 
Houk  V.  Barthold,  73  Ind.  21.   §§  416, 

440. 
Housatonic  R.  R.   Co.  v.  Lee  &  H. 
R'  R.  Ca  118  Mass.  391.    g  388. 


House  Ave.,  Matter  of  Opening,  67 

Barb.  350.     §  399. 
House  V.   House,  5  Har.  &  J.  125. 
§350. 
V.  State,  41  Miss.  737.    §  138. 
Householder  v.  Granby,  40  Ohio  St. 

430.     §  452. 
Houston  V.  Boyle,  10  Ired.  496.    §  20&. 

V.  Moore,  5  Wheat  1.    §  68. 
Houston,  etc.  R'y  Co.  v.  Bradley,  45 
Tex.  171.    §  371. 
V.  Ford,  53  Tex.  364.    §§  151,  153. 
V.  Odum,  53  Tex.  343.    §§  41,  51. 
Howard  v.  Bodington,  L.  R  2  P.  Div. 
203.     §447. 
V.  Central  Bank,  3  Ga.  380.  §  411. 
V.  Ives,  1  Hill,  263.    §  115. 
V.  Mansfield,  30  Wis.  75.    §  240. 
V.  Moot,  64  N.  Y.  262.    §  478. 
V.  State,  5  Ind.  183.    §  166. 
V.  WiUiams,  2  Pick.  80.    §  372. 
Howard  Association's  Appeal,  70  Pa, 

St  344.     §§  152,  238,  332,  333. 
Howard  Co.,  Division  of,  15  Kan.  194. 

§300. 
Howe  V.  Peckham,  6  How.  Pr.  229. 

§289. 
HoweU  V.  Hair,  15  Ala.  194    §§  3P8, 
426. 
V.  State,  71  Ga,  224    §§  88,  96, 

307. 
V.  Stewart,  54  Mo.  400.  g§  325, 
336. 
Howes,  Matter  of,  21  Vt  619.  §  110. 
Howey  v.  IHiller,  67  N.  C.  459.  §  290. 
Howland  v.  Luce,  16  John.  135.  §  44&. 
Howl  and  Coal  &  Iron  W.  v.  Bro^vn, 

13  Bush,  685.     §§  85,  87,  92,  93. 
Hoyt  V.  Commissioners  of  Taxes,  23 
N.  Y.  224     §  236. 
V.  McNeil,  13  JVIimi.  390.   §  297. 
Hubbard  v.  Jolmstone,  3  Taunt  177.. 
§361. 
V.  State,  2  Tex.  App.  506.    §  166. 
Hubbell  V.   Denison,  20  Wend.  181. 
§207. 
V.  Weldon,  Lalor,  139.    §  454 
Huber  v.  People,  49  N.  Y.  132.    §§80,. 
95. 


OASES    CITED. 


lix 


Huber  v.  Sterner,  2  Bing,  N.  C.  202. 

§479. 
Hudler   v.    Golden,    36   N.   Y.   440. 

g§  207,  441. 
Huddleston   v,   Askey,  56  Ala.  218. 

g§  255,  256. 
Hudson   V.  Buck,  51   N.  J.  L.   155. 
§128. 

V.  Jefferson  Co.  Ct  28  Ark,  359. 
§454. 

V.  Tooth,  L.  R  3  Q.  B.  Div.  46. 
§300. 
Hudson  Co.  Freeholders  y.  Freehold- 
ers, 49  N.  J.  L.  228.     §  129. 
Hudspeth  v.  Davis,  41  Ala.  389.  §  478. 
Hudston  V.  IVIidland  R  Co.,  L.  R  4 

Q.  B.  366.     §  256. 
Huecke  v.  Milwaukee  City  R'y  Co. 

69  Wis.  401.     §  449. 
Huensteine  v.  Lynham,  28  Gratt  62. 

§480. 
Huffman  v.  State,  30  Ala.  582.    §  320. 

V.  State,  29  Ala.  40.     §  349. 
Hugg  V.  Camden,  39  N.  J.   L.  620. 

§448. 
Huggins  V.  Bambridge,  "Willes,  241. 
§333. 

V.  Kavanagh,  52  Iowa,  368.  §  377. 
Hughes  V.  Cannon,  2  Humph.  589. 
§483. 

T.  Chester,  etc.  Ry  Co.  1  Drew. 
&  Sm.  524.     §  213. 

V.  Chester,  etc.  Ry  Co.   8  J\ir. 
(N.  S.)  221.     §  370. 

V.  Farrar,  45  Ma  72.    §256. 

V.  Felton,  11  Colo.  489.    §  395. 

V.  Griflitlis,  106  Eng.  C.  K  332. 
§115. 
HuU  V.  HuU,  2  Strob.  Eq.  174.    §  431. 

V.  Miller,  4  Neb.  503.    §§  47,  49, 
50,  51. 
Humboldt  Co.  v.  Churchill  Co.  6  Nev. 

30.    §  330. 
Hmnboldt  Co.  v.  County  Com'rs,  6 

Nev.  30.    §  101. 
Humes  v.  IMissouri.  etc.  Ry  Co.  82 

Mo.  221.    §125. 
Humphrey  v.  Chamberlain,  UN.  Y. 

274.     §§  207,  394. 


Humphreys  v.  Green,  L.  R  10  Q.  B. 

Div.  148.     §  427. 
Ilumphreyville  Cop.  Co.  v.  Sterling, 

1  Brun.  CoL  Cas.  3.     §  191. 
Hunt  V.  Grant,  19  Wend.  90.     §  451. 

V.  Jennings,      5      Blackf.      195. 
gg  162,  464. 

V.  Murray,  17  Iowa,  313.     §  109. 
Hunter  v.  Glenn,  1  Bailey,  542.  §  424 

V.  Nockolds,  1  McN.  &  Gord.  651. 
§210. 
Huntington  v.  Brinkerhoff,  10  Wend- 
278.     §  424 

V.  Forkson,  6  Hill,  149.     §  207. 
Himtingtower  v.  Gardiner,  1  B.  &  C. 

297.     §  355. 
Huntzinger  v.  Brock,  3  Grant's  Cas. 

243.     §476. 
Hm-ford  v.  Omaha,  4  Neb.  336.  §§  139, 

203,  455. 
Hurlburt  v.  Men'iam,   3  Mch.  144 

§40. 
Hurley  v.  Town  of  Texas,  20  Wis. 

634  §§  156,  161. 
Hurst  V.  Hawn,  5  Oregon,  275.  §138. 
Hurth  V.  Bower,  30  Hun,  151.  §  396. 
Huth  V.  Ins.  Co.  8  Bosw.  538.  §  184 
Hyatt  V.  Taylor,  42  N.  Y.  258.  §  238. 
Hyde  v.  Cogan,  2  Doug.  699.  §§  360, 
416. 

v.  Hyde,  L.  R   1  R  &  D.   134 
§247. 

V.  W^abash,  etc  R  R  Co.  61  Iowa, 
441.    §13. 

V.  ^Miite,  24  Tex.  137.    §  39. 
Hyde  Pai'k  v.  Cemetery  Asso.  119  HL 
141.    §  158. 

V.  Chicago,  124  IlL  156.    §  101. 
Hydi-ick    v.    Bvu-ke,     30    Ark.    124 

§184 
Hyman  v.  State,  87  Tenn.  109.  §  101. 

lana,  The,  L.  R  1  R  C.  426.    §  364 
Ihmsen  v.  Monongahela  Nav.  Co.  32 

Pa.  St  152.    §g  222,  223. 
Bes  v.  West  Ham  Union,  L.  R  8  Q. 

B.  Div.  69.     §  362. 
Illinois,  etc.  Canal  v.  Chicago,  14  lU. 

334    §§165,464 


Ix 


CASES    CITED. 


Illinois  Cent  R  R  Co.  v.  Cliicago, 
etc.  R  R  Co.  123  HL  473. 
§§  387,  388. 

V.  Wren,  43  IlL  77.     §52. 
HLmois,  etc.  R  R  Co.  v.  Gay,  5  IlL 

App.  393.    §  454. 
Independent  Scliool  District  v.  Bvir- 

lington,  60  Iowa,  500.     §  130. 
India,  The,  33  L.  J.  Rep.  R  K  &  A. 

193 ;  Br.  &  L.  221,     §§  137,  146. 
Indiana  Central  R'y  v.  Potts,  7  Ind. 

681.    §§  86,  88. 
Indiana,   etc.  R'y  Co.  v.  Attica,  56 

Ind.  476.    §390. 
Indianapolis  v.  Huegele,  115  Ind.  581. 
§92. 

V.  Imberry,  17  Ind.  175.    §  206. 
Indianapolis,  etc.  R  R.  Co.  v.  Case,  15 
Ind.  42.     §  298. 

V.  Kercheval,  16  Ind.  84.  §  473. 

V.  Stephens,  28  Ind.  429.    §  298. 
Industi"ial  School  District  v.  White- 
head, 13  N,  J.  Eq.  290.  §§  154,  204 
Industry,  The,  1  GaU.   114    §§  143, 

349. 
Inge  V.  Murphy,  10  Ala.  885.    §§  191, 

192. 
Inghs  V.  Haigh,  8  M.  &  W.  769.  §  426. 

V.  Trustees,  etc.  3  Pet.  99.    §  187. 
Ingraham   v.    Hart,    11    Ohio,    255. 
§§  190,  192. 

V.  Regan,  23  Miss.  213.    §  256. 

V.  Speed,  30  Miss.  140.     §  240. 
Ingram's  Case,  Coke  Litt.  234a.  §  429. 
Ingi-am  v.  State,  27  Ala.  17.     §  298. 
Inhabitants  of  Charlestown  v.  County 

Com'rs,  3  Met.  203.    §  386. 
Inkster  v.  Carver,  16  Mich.  484  §§  92, 

331. 
Innis  V.  Templeton,  95  Pa.  St.  262. 

§458. 
Insurance  Co.  v.  Stokes,  9  PhUa,  80. 

§210. 
International  Patent  P.  etc.  Co.,  In  re, 

37  L.  T.  (N.  S.)  351.    §  350. 
Intoxicating  Liquor  Cases,  25  Kan. 

751.     §  326. 
Iowa  Land  Co.  v.  Soper,  39  Iowa,  112. 

§125. 


Ireland  v.  Palestine,  etc.  T.  Co.  19 

Ohio,  369.     §  474 
Ironsides,     The,     Lushington,     458. 

§§  480,  481. 
In-esistible,  The,  7  Wheat  551.   §§  11, 

166,  225. 
Irving  V,    Humphreys,    Hopk.  364. 
§§  111,  113. 

V.  McLean,  4  Blackf .  52.    §  297. 
Irwin,  Succession  of,  33  La  Ann.  63. 

§103. 
Isabelle  v.  Iron  Cliffs  Co.  57  Mich. 

120.    §§  112,  114 
Isham  V.  Bennington  Iron  Co.  19  Vt 

230.     §  225. 
Isitt  V.  Beeston,  L.  R  4   Ex.    159, 

§265. 
Itawamba  v.  Candler,  62  l^Iiss.  193. 

§398. 
Iverson  v.  State,  52  Ala.  170.    §  138. 
Ivey  V.  McQueen,  17  Ala.  408.    §  372. 

Jackman   v.  Dubois,    4   John.    216. 

§402. 
V.  Garland,  64  Me.  133.    §  107. 
Jackson  v.  Bradt,  2  CaL  303.    §§  202, 

240,  246. 
V.  Butler,  8  Minn.  117.     §  478. 
V.  Canns,  20  John.  301.     §  401. 
V.  Catlin,  8  John.  520.     §  194 
V.  Catlm,  2  John.  248.  §§  194,  390. 
V.  Chew,  12  Wheat  153.     §  187. 
V.  CoUms,  3  Cow.  89.    §§  234,  246. 
V.  Cory,  8  John.  385.     §  378. 
V.  DiUon,  2  Overt  261.     §  483. 
V.  Gilclu-ist  15  John.  89.    §§  212, 

213,  483. 
V.  Hammond,  2  CaL    Cas.    337. 

§378. 
V.  Hobby,  20  Jolm.  361.    §  207. 
V.  Lamphue,  3  Pet  290.    §§  378, 

474,  478. 
V.  Lervey,  5  Cow.  397.    §  337. 
V.  Moye,  33  Ga.  296.     §  228. 
V.  Noble,  54  Iowa,  641.    §§  373, 

377. 
V.  Phelps,  3  Caines,  62.    §  229. 
V.  Shepherd,  6  Cow.  444    §§  207, 

390. 


CASES    CITED. 


1X1 


Jackson  v.  State,  7G  Ala,  2G.    §  138. 
V.  Thurman,  6  John.  322,     §  234. 
T.Warren,  32  IlL  331,    §§   207, 

435. 
V.  Young,  5    Cow.  269.    §§  448, 
452. 
Jackson,  etc.  R  R  Co.  v.  Davison,  65 

Mich.  416.    §§  379,  390. 
Jacksonville  v.  Basnett,  20  Fla.  525. 

§g  94,  483. 

Jacob  V.  State,  3  Humph.  493.    g  184. 

V.  United  States,   1  Brock.  520. 

§§  399,  400. 

Jacobs,  Re,  98  N.  Y.  98.    §§  370,  373. 

Jacobs  V.  Brett,  L.  R.  20  Eq.  6.  §  396. 

V.  Graham,  1  Blackf.  392.  §§111, 

112. 
V.  Ki-uger,  19  Cal.  411.    §  429. 
V.  Smallwood,  63  N.  C.  112.  §  478. 
Jacoby  v.  Shafer,   105  Pa,   St   610. 

§283. 
Jacquins  v.  Clark,  9  Cush.  279.   §  483. 
V.  Commonwealth,  9  Cusla.  279. 
§§  206,  469. 
Jacubeck  v.  Hewitt,  61  Wis.  96.  §  398. 
James  v.  Catherwood,  3  D.  &  R  190. 
§12. 
V.  Commonwealth,   12  S.   &   R 

220.     §  137. 
v.  Dubois,  16  N.  J.  L.  285.  §§  164, 

165,  168. 
V.  Rowland,  52  Md.  462.    §  201. 
Janes  v.  Buzzard,  Hempst.  259.  §  168. 
Janney  v.  BueU,  55  Ala.  408.    §§  140, 

399. 
Januaiy  v.  January,  7  T.  B.   Mon. 

542.     §478. 
Janvrin  v.  De  la  Mere,  14  Moore's 

R  C.  334.    §  310. 
Jaques  v.  Golightly,  2  W.  Bl.  1073. 

§325. 
Jarman,  Ex  parte,  L.  R  4  CIl  Div. 

838.    §§256,462. 
Jarvis  V.  Jarvis,    3    Edw.   Ch.   462. 
§§  206,  483. 
V.  Robinson,  21  Wis.  523.    §§  294, 
301. 
Jasper   v.    Porter,    2    McLean,   579. 
§  293. 


Jefferson  Co.  v.  Reitz,  56  I'a.  St  44. 

§157. 
Jefferys  v,  Boosey,  4  H.  of  L.  815. 

§§  196,  210,  239,  240,  246. 
Jenkins  v.  Crevicr,  50  N.  J.  L.  351. 
§396. 

V.  Ewm,  8  Heisk.  456.     §  256. 

V.  Union  Turnpike  Co.  1  CaL  Cas. 
86.    §19a 

V.  Wild,  14  Wend.  539.    §  369. 
Jenkinson  v.   Thomas,  4  T.  R  665. 

§349. 
Jennings  v.  Love,  24  Miss.  249.  §  241. 
Jerome  v.   Ross,   7  John.    Ck    315. 

§387. 
Jersey  City  v.  Hud«on,  13  N.  J.  Eq. 

420.    §§333,386. 
Jersey  Co.  v.  Davison,  25  N.  J.  L.  415. 

§§  322,  324 
Jesson  V.  Wright,  2  Bhgli,  2.     §  247, 
Jessup  V.  Cai-negie,  80  N.    Y.  441. 

§256. 
Jewell  V.  Weed,  18  Minn.  272.  §§235, 

237, 
Jewett  V,  Wanshura,  43  Iowa,   574. 

§§  376,  377, 
Jenison    v.   Dyson,   9  JL  &  W.  540. 

§310. 
Johnes  v,  Johnes,  3  Dow,  15.     §  410. 
Johns  V.  State,  78  Ind.  332.    §  143. 
Johnson,  Ex  parte,  7  Cow.  424.  §  449. 
Jolmson    V.    Ballou,    28    Mich.   379. 
§309. 

V.  Bond,  Hempst  533.     §  478. 

V.  Bmrell,  2  Hill,  238.     §  464. 

V.  Bush,  2  Barb.  Ch.  207.    §  152. 

V.  Byrd,  Hempst  434.     §  138. 

V.  Cliicago,  etc.  R  R  Co.  64  Wis. 
425.     §  371. 

V.  Common  Covmcil,  16  Ind.  227. 
§306. 

V.  Drummoud,  16  111.  App.  641. 
§375. 

V.  Haines,  4  DalL  64    §  432. 

V.  Higgms,3Met(Ky.)566.  §§85, 
330,  478. 

V.  Hudson,  11  East,  180.    §  836. 

V.  Johnson,  52  Md.  66a     §§  463, 
480. 


1\ii 


CASES   CITED. 


Johnson   v.  Johnson,    26    IncL   441. 
§206. 
V.  Johet,  etc.  R  R.  Co.  23  Dl.  202. 

§345. 
V.  Koockogey,  23  Ga.  183.    §  482. 
V.  Meeker,  1  Wis.  436.    §  164. 
V.  Merchandise,    2    Paine,    601. 

§104. 
V.  People,  83  HL  431.    §§  87,  88. 
V.  Raikoad  Co.    49    N.    Y.    456. 

§324 
V.  Raihroad    Co.    49  N.    Y.    455. 

§§  236,  237,  238, 
V.  Richardson,      44     Ark.     365. 

§§  483,  484. 
V.  Robertson,  31  Md.  476.  §§  296, 

306. 
V.  State,  33  Miss.  363.    §  449. 
V.  Stout,  42  Mnn.  514.     §  398. 
v.  Upham,  2  E.  &  E.  250.     §  210. 
V.  Wmslow,  63  N.  C.  552.     §  169. 
Johnston's    Estate,    33  Pa.   St    511. 

§§  140,  156. 
Johnston  v.  Bank,  3  Strob.  Eq.  263. 
§191. 
V.  Pate,  95  N.  C.  68.    §  463. 
V.  Rankin,  70  N.  C.  550.     §398. 
V.  Spicer,  107  N.  Y.  185.    §  103. 
V.  Wilson,  29  Gratt  379.     §  296. 
JoUie  V.  Jaques,  1  Blatcli.  618.    §  458. 
Jonas  V.   Cincinnati,   18    Oliio,   318. 

§365. 
Jones'  Appeal,  3  Grant,  169.    §  220. 
Jones,  In  re,  7  Ex.  586.    §  262. 
Jones  V.  Brown,  2  Ex.  332.     §  333. 
V.  Gavins,  4  Ind.  305.    §  109. 
V.  Collins,  16  Wis.   594.    §§  207, 

420. 
V.  Columbus,  25  Ga.  610.     §  101. 
V.  Commissioner,    21  Mich.   236. 

§132. 
V.  Dexter,  8  Fla.  270.    §§  257,  333. 
V.  Hays,  4  McLean,  521.    §§  185, 

293. 
T.  Hutchinson,  43  Ala.  721.  §§  29, 

41,  43,  45,  294. 
V.  Jones,  18  Me.  308,    §  249. 
V.  Jones,  104  N.  Y.  234.     §  174. 
V.  Kearns,  Mart.  &  Y.  241.   §  196. 


Jones  V.  Maffet,  5  S.  &  R.  523.    §  190.. 
V.  Robbms,  8  Gray,  329.    §  176. 
V.  Smart,  1  T.  R.  44.    §§  430,  431. 
V.  Smith,  3  Gray,  500.     §  336. 
V.  Smith,  14  Mich,  334,    §  397. 
V.  State,  1  Ga.  610.      §  409. 
V.  State,  1  Kan.  273,    §§  447, 451. 
V,  State,  1  Iowa,  395,   §§  167,  225. 
V.  Surprise,  64  N.  H.  243 ;  4  New 

Eng.  Rep.  292.    §§  231, 402. 
V.  Tatham,  20  Pa,  St  398.    §§  194, 

333,  335. 
V.  Theall,  3  Nev,  233.     §  26. 
V.  Thompson,      12     Bush,      394 

§§  102,  170. 
V.  Water  Com'rs,  34  Mch.  273. 

§240. 
T,  Wootten,    1  Harr,    (Del)   77. 
§§  206,  229. 
Jones'  Heu-s  v.  Perry,  10  Yerg.  59.  §  5. 
Jordan  v,  Dobson,  2  Abb.  (U.  S.)  398. 
§480. 
V.  Gibhn,  12  CaL  100.    §  394 
V.  Wimer,  45  Iowa,  65.     §  206. 
Jordt  V.  State,  31  Tex.  571.    §  347. 
Jom'neay  v.   Gibson,  56  Pa.  St  57. 

§§  164  201,  483. 
Judd  V.  Fulton,  10  Barb.  117.    §§  110, 

111. 
Judge  of  Campbell  County  Court  v. 

Taylor,  8  Bush,  206.    §  365. 
Judson  V.  Leach,  7  Cow.  152.    §  204. 
Juhand  v.  Rathbone,  39  N.  Y.  369. 

§459. 
Jvdius  V.  Lord  Bishop  of  Oxford,  L.  R 

5  App.  Cas.  214     §§  460,  462. 
Jump  V.  Batton,  35  Mo.  196.     §  63. 
Junction  City  v.  Webb,  23  Pac.  Rep. 

1073.     §  134 
Justices  V.  Griffin,  etc.  Plk.  R  Co.  9 
Ga,475.    §378. 

Kadgm  v.  MiUer,  13  IlL  App,  474. 

§374 
Kamerick  v,  Castleman,  21  Mo.  App. 

587,    §133. 
Kane  v.  New  York,  etc.  R'y  Co.  4&' 
Conn.  139.     §  134 

V.  State,  78  Ind.  103.    §  96. 


CASES    CITED. 


Lxiii 


Kankakee  Co.  v.  ^tna  Life  Ins.  Co. 

106  U.  S.  668.     §  157. 
Kaolatype  Engi-aving  Co.  v.  Hoke,  30 

Fed.  Rep.  444.     §  305. 
Kansas  City,  etc.  R.  R.  Co.  v.  Camp- 

beU,  62  Mo.  585.    §  391. 
Kansas  Pac.  R'y  Co.  v.  Dunmeyer, 
113  U.  S.  629.     §  379. 

V.  Lundin,  3  Colo.  94.    §  371. 

V.  Wyandotte,  16  Kan.  587.  §221. 
Karr   v.    Washburn,    56    Wis.    303. 

§420. 
Kate    Heron,  Tlie,    6    Sa^vye^,   106. 

§§  247,  253,  291. 
Kean  v.  Stetson,  5  Pick.  492.    §  388. 
Kearney  v.  Fitzgerald,  43  Iowa,  580. 

§377. 
Kearns  v.  Cordwainers'  Co.  6  C.  B. 

(N.  S.)  388.    §§  213,  213. 
Keech  v.  Baltimore,  etc.  R.  R.  Co.  17 

Md  32.    §  290. 
Keemer  v.  HeiT,  98  Pa.  St.  6.    §  398. 
Keenan  v.   Stimson,   32    Minn.  377. 

§14. 
Keeton  v.  Keeton,  20  Mo.  530.    §  424 
Keith  V.  Clark,  97  U.  S.  465.    §  20. 

V.  Quinney,  1  Ore.  364.     §§  240, 
246,  293. 
Keitler  v.  State,  4  Greene  (Iowa),  291. 

§395. 
Keller  v.  Commonwealth,  71  Pa.  St. 
413.    §  159. 

V.  Corpus  Christi,  50    Tex.   614 
§§  392,  398. 

V.  Houlihan,  32  Minn.  486.  §  462. 

V.  State,  12  Md.  325.     §§  164,  166. 

V.  State,  11  Md  531.    §§  78,  349. 
Kelley   v.    State,    6    Ohio    St    269. 
§§  121,  123,  123,  174  1T9. 

V.  Story,  6  Heist  202.    §  306. 
KeUook's   Case,    L.    R.    3    Ch.    781. 

§833. 
Kellogg,    Ex   parte,     3    Cow.     372. 

§449. 
KeUogg   V.   Oshkosh,    14    Wis.   623. 
§136. 

V.  Page,  44  Vt  356.    §  447. 
Kelly  V.  Meeks,  87  ]\Io.  396.     §  70. 

V.  State,  92  Ind.  236.     §  117. 


Kelly's    Heii-s  v.  McGuire,  15  Ark. 

555.     §§  215,  240,  241,  259. 
KeUy  Tp.  v.  Union  Tp.  5  Watta  &  a 

535.    §§202,324 
Kelsey  v.  KendaU,  48  Vt  24    §§  133, 

206. 
Kendall  v.  Dodge,  3  Vt  360.    §  10. 

V.  United    States,    12    Pet    524 
§257. 
Kenfield  v.  Irwin,  52  CaL  104     §  451. 
Kennedy,  In  re,  2  S.  C.  216.     §  476. 
Kennedy  v.  Cunningham,  2  Met  (Ky.) 
538.     §  342. 

V.  Gies,  25  Midi.  83.    §  246. 

V.  Kennedy,  2  Ala.  571.     §  246. 

V.  Pahiier,  6  Gray,  316.    §§  110, 
182. 
Kenny  v.    Clarkson,    1    John.    385. 

§190. 
Kent  V.  Somervell,  7  Gill  &  J.  205. 

§§  210,  213. 
Kephart  v.  Farmers',  etc.   Bank,   4 

Mich.  602.     g  323. 
Keppel  V.  Petersburg  R  R.  Co.,  Chase's 

Dec.  167.    §  398. 
Kerkow    v.    Bauer,     15    Neb.     150. 

§§  303,  377. 
Kerlin    v.    Bull,   1    DalL  (Pa.)    175. 

§§  322,  324. 
Kerlinger  v.  Barnes,  14  Minn.  526. 

§133. 
Kermott  v.  Ayer,  11  IMich.  181.   §  184. 
Kemion  v.   Hills,   1   La.   Ann.    419. 

§310. 

Kerr,  Matter  of,  42  Barb.  119.    §  473. 

Kerr  v.  Haverstick,  94  Ind  180.  §  113. 

Kerrigan    v.    Force,   68    N.  Y.   381. 

§§  120,  129,  198,  332. 

V.  Force,  9  Hun,  185.     §  193. 
Kesler  v.  Smith,  66  N.  C.  154.     §  152. 
Kessel  v.  Albetis,  50  Barb.  302.    §§  181, 

362. 
Ketcham  v.  Fox,  52  Hun,  284    §  374 
Keyes    v.  Westford,    17    Pick,    373. 

§380. 
Keyport  St  B.  Co.  v.  Farmers'  Trans- 
portation Co.    18  N.   J.   Eq.   34 

g^  398.  300,  301. 
Kibbe  v.  Ditto,  93  U.  S.  674     §  146. 


Ixiv 


CASES   CITED. 


Kichner  v.  Meyers,  35  Ohio  St  85 ;  35 

Am.  Rep.  598.    §376. 
Kielley  v.  CarsoB,  4  Moore's  P.  C.  85. 

§17. 
Kiemcon,  In  re,  6  T.  &  C.  820.    §  101. 
Kiei-sted   v.   State,  1    G.  «&    J.  231. 

§309. 
Kilboum  v.  Thompson,  103  U.  S.  168. 

§§  8,  294,  395. 
KUburn  v.  Deming,  2  Vt.  404.     §  422. 
Kile  V.  Yellowhead,  80  111.  208.    §  298. 
Kilgore    v.   Magee,  85    Pa.  St  412. 

§§  35,  128,  330. 
KUgow  V.  MHes,  6    GiU    &  J.  268. 

115. 
EaUebrew  v.  Murphy,  3  Heisk.  546. 

§298. 
KiUip  V.  McKay,  13  N.  Y.  St  Rep.  5. 

§303. 
Kilpati-ick  v.   Byrne,   25    Miss.   571. 

§368. 
KimbaU  v.  Lamson,  2  Yt  138.     §  253. 
V.  Rosendale,  42  Wis.  407.     §  129. 
Kimbray  v.  Draper,  L.  R.  3  Q.  B.  160. 

§§  206,  482. 
Kimbro  v.  Bank  of  Fulton,  49  Ga.  419. 

§218. 
Kimm  v.  Osgood's  Adm'r,  19  Mo.  60. 

§§  111,  112. 
Kiuard  v.  Moore,  3  Strob.  193.    §  364. 
Kinderley  v.  Jervis,  25  L.  J.  Ch.  541. 

§§  236,  238. 
King,   Ex  parte,  2  Bro.  C.   C.   158. 

§194. 
Kmg  V.  Adderly,  2  Doug.  463.    §  112. 
V.  Ai-undel,  Hob.  110.     §§  27,  44 
V.  Banks,  61  Ga.  20.     §§  94,  98. 
V.  Birmingham,  8    B.  &  C.  29. 

§336. 
V.  Bridges,  8  East  53.    §  142. 
V.  Burridge,    3    P.    Wms.     496. 

§193. 
V.  CorneU,  106  U.  S.  395.    §  154. 
V.  Davis,    1    Leach's     Cas.    271. 

§142. 
V.  Dedham  Bank,  15  Mass.  447. 

§473. 
V.  DowdaU,  2  Sandf.  131.    §  115. 
T.  Downs,  3  T.  R  569.    §  138. 


King  V.  Haley,  86  HI  106.    §  375. 

V.  Herefordshire,  3  Bam.  &  Aid. 

581.    §112. 
V.  Kent  29  Ala.  542.    §  298. 
V.  Moore,  Jeff.  (Ya.)  8.    §  110. 
V.  Pease,  4  B.  &  Ad.  30.    §§  254, 

258. 
V.  Thompson,    87    Pa     St    365. 

§273. 
V.  Thurston,  1  Lev.  91.     §  105. 
V.  Wilson,  1  Dili  555.    §  185. 
King  of  Two  Sicihes  v.  Wilcox,  1 

Sun.  (N.  S.)  301.     §  12. 
Kingsford  v.  Great  W.  R'y  Co.  16 

C.  B.  (N.  S.)  761.     §  420. 
Kmgsley  v.   Kingsley,    20    IlL    203. 

§§  184,  192. 
Kmney  v.  Mallory,  3  Ala,  626.    §  138. 
Kansey  v.  Hej'^vard,  1  Ld.  Raym.  434» 

§424. 
Kirk    V.    Armstrong,    Hempst   283. 

§454. 
Kirkpati-ick  v.  Gibson,  2  Brock.  388. 
§§  256,  333. 
V.  New  Brimswick,  40  N.  J.  Eq. 
46.    §§93,95. 
Kirkstall  Brewery,  Re,  5  Ch.  Div.  535. 

§255. 

Kistler  v.  Hereth,  75  Ind.  177.    §  426. 

Kitchen    v.    Bartsch,     7    East    53. 

§310. 

V.  Shaw,  6  Ad.  &  E.  729.    §  270. 

v.  Smith,  101  Pa.  St  452.     §  137. 

Klem  V.  Kmkead,  16  Nev.  194.   §§93, 

96. 
Khne  v.  Baker,  99  Mass.  253.    §§  188, 

190, 192. 
Knapp   v.    Brooklyn,  97  N.  Y.  520. 

§257. 
Knaust  In  re,  101  N.  Y.  188.    §  88. 
Kneeland  v.  ]\Iilwaukee,  15  Wis.  454. 

§317. 
Knight  V.  Aroostook  R.  R.  67  Me.  291. 
§154. 
V.  Bate,  2  Cowp.  738.    §  424 
V.  Freeholders  of  Ocean  Co.  49 

N.  J.  L.  485.    §  333. 
V.  West  Jersey  R.  R.  Co.  108  Pa^ 
St  250.     §  14 


CASES   CITED. 


Ixv 


Kniper  v.   Louisville,   7  Bush,    599. 

§  365. 
Knoup  V.  Piqua  Bank,  1  Ohio  St  603. 

g§  164,  167. 
Knox  V.  Baldwin,  80  N.  Y.  610.   §§  154, 
163, 167. 

V.  Cleveland,  13  Wis.  249.  §480. 
Knoxville  v.  Lewis,  12  Lea,  180.  §§  87, 

102. 
Knoxville,  eta  R  R.  Co.  v.  Hicks,  9 

Baxt  442.     §  4. 
Koch  v.  Bridges,  45  Miss.  247.  §§  139, 

234,  237,  326,  455. 
Koemer  v.  Oberly,  56  Ind.  284  §  374. 
Kohn  V.  Carrollton,  10  La>  Ann.  719. 

§132. 
Kollock    V.    Parcher,    25    Wis.    372. 

§398. 
Koning    v.    Bayard,   2    Paine,    251. 

§334. 
Koontz   V.   Franklin  Co.  76  Pa.  St 
754.    §  473. 

v.  Howsare,  100  Pa.  St  504.  §  284 
Korah  v.  Ottawa,  32  IlL  121.  §  145. 
Koser,  Ex  parte,  60  CaL  187.    §§  123, 

129. 
Kossuth  County  v.  Wallace,  60  Iowa, 

508.    §469. 
Kountze  v.  Omaha,  5  Dill.  443.  §§  186, 

330. 
Ki-ach    V.    HeUman,    53    Ind-    517. 

§§  375,  376. 
KJramer   v.    Holster,    55    Miss.   243. 

§394 
Kreiger  v.  Shelby  R  R  Co.  84  Ky. 

66.    §  383. 
Kreiter   v.    Nichols,   28    Mich.    496. 

§374 
Ki-ing    V.   Missouri,   107    U.  S.  221. 

§§  465,  466,  467. 
Kroop  V.  Forman,  31  Mich.  144  §456. 
Kuckler  v.  People,  5  Park,  Crimu  Eep. 

212.     §  470. 
Kuhns    V.    Krammis,    20    Ind.   490. 

§102. 
Kimkle   v.   Franklin,   13  Minn.  127. 

§206. 
Kupfert  v.  Building  Asso.  30  Pa  St 

465.     §  201. 


Kutztown    Alley,  In  re,  2  Woodw. 

Dec.  (Pa.)  373.     §  204. 
Kyle  V.  Malin,  8  Ind.  34    §  380. 

Lacon  v.  Higgins,  3  Stark.  178.  §  190. 

V.  Hooper,  6  T.  R.  224.     §  253. 
Lackawana  Iron  Co.  v.  Little  Wolf, 

38  Wis.  152.     §  448. 
Lafayette  v.  Cox,  5  Ind.  38.     §  380. 
La  France  v. .  Eaayer,  42  Iowa,  143. 

§  377. 
La  Grange  v.  Chapman,  11  IHich.  499. 
§298. 

V.  Cutler,  6  Ind.  354    §  217. 
Lair  v.   KiJlmer,  25  N.    J.    L.    522. 

§§  208.  350. 
Lake  v.  Caddo  Parish,  37  La.  Ann, 
788.     §  240. 

V.  State,  18  Fla  501.    §  135. 

V.  WUliamsburg,  4  Denio,  520. 
§365. 
Lakeman  v.  Moore,  32  N.  H.   410. 

§226. 
Lamar  v.  jMicou,  114  U.  S.  218.  §§  185, 

293. 
Lamb  v.  Lynd,  44  Pa.  St  336.    §  384 

V.  Schottler,  54  Cal.  319.     §§  165, 
464 
Lambertson  v.  Hagan,  2  Pa.  St  25. 

§§  10,  201,  206. 
Lammer,  Re,  7  Biss.  269.    §  364. 
Lamond  v.  Eiffe,  3  Q.  B.  910.    §  324 
Lampliear  v.  Buckingham,  33  Conn. 

237.     §  320. 
Lampton  v.  Haggard,  3  T.  B.  Mon. 

149.     §  306. 
Landford  v.   Dunklin,  71   Ala.   694 

§  256. 
Land  Grant  Railway  v.  Commission- 
ers, 6  Kan.  252.     §  12. 
Landers  v.  Staten  Island  R  R  Co.  14 

Abb.  Pr.  (N.  S.)  346.     §  397. 
Landis  v.   Landis,  39  N.  J.  L.  274 

§§  137,  152. 
Lanes  Appeal,  105  Pa.  St  49.     §  371. 
Lane    v.    Bennett    1  M.   &   W.    70. 
§  430. 

V.  Buruap,  39  Mick  736.    §  457. 

v.  Cai-y,  19  Bai-b.  539.    §  440. 


Ixvi 


CASES    CITED. 


Lane  v.  Nelson,  79  Pa.  St  407.  §§  480, 
482,  484. 

V.  Schomp,  20  N.  J.  Eq.  82.  §  261. 
V.  State,  49  N.  J.  L.  673.    §  102. 

V.  Wheeler,  101  N.  Y.  17.    §  454 
Lanfear  v.  Mestier,  18  La  Ann.  497. 

§298. 
Lang  V.  PbiUips,  27  Ala.  311.     §  110. 

V.  Scott,  1  Blackf,  405.     §§  204, 
325.  , 

Langdeau   v.   Hanes,  21  Wall.   527. 

§19. 
Lange,  In  re,  85  N.  Y.  807.    §  457. 
Langdon  v.  Summers,  10  Oliio  St.  79. 
§398. 

V.  Y^oung,  33  Vt.  136.    §  184 
Languille  v.  State,  4  Tex.  App.  31S. 

§206. 
Lanning  v.  Carpenter,  20  N.  Y.  447. 

§§  181,  183. 
Lanzetti,  Succession  of,  9  La.  Ann. 

333.     §§  82,  87. 
Lape^Te  v.  United  States,  17  WalL 
'      191.     §  182. 

La  Plaisance  Bay  Harbor  Co.  v.  Mon- 
roe, Walk.  Ch.  (Mich.)  155.   §  878. 
LaiTabee  v.  Talbott,  5  Gill,  426.   §  107. 
Lan-ison  v.  R.  R.  Co.  77  111.  11.   §§  46, 

52,  91,  188. 
Larzelere  v.  Haubert,  109  Pa.  St  515. 

§246. 
La  SeUe  v.  Wliitfield,  12  La,  Ann.  81. 

§333. 
Lash  V.  Von  Neida,  109  Pa.  St  207. 

§333. 
Lasure  v.  State,  19  Ohio  St  43.  §  469. 
Lathrop  v.  Mills,  19  CaL  513.    §§  174, 
180. 

V.  Stedman,  42  Conn.  583.   §§  212, 
213. 
Lattess  v.  Holmes,  4  T.  R.  660.  §§  105, 

107. 
Laude  v.  Chicago,  etc.  R'y  Co.  33  Wis. 

640.     §§  133,  134  167. 
Lauer  v.  State,  22  Ind.  461.     §  92. 
Lauve,  Succession  of,  6  La  Ann.  529. 

§314 
Lai/ghlin  v.  Commonwealth,  13  Bush, 

261.     §§164,  46a 


Laughter  v.  Seela,  59  Tex.  177.  §  287. 
Laura,  The,  114  U.  S.  411.     §  309. 
Law  V.  Hodson,  11  East  300.     §  336. 

V.  Law,  Cases  Temp.  Talbot  140 ; 
3  P.  Wms.  391.     §  429. 
Lawrence  v.  Allen,  7  How.  785.  §  254 

V.  GrambUng,  13  S.  C.  125.  §  185. 

V.  Kmg,  L.  R.  3  Q.  B.  345.    §  256. 
Lawrence  R.  R.  Co.  v.  Mahoning  Co. 

35  Ohio  St  1.     §  482. 
Lawson   v.   De  Bolt    78    Ind.    56a 
§§  132,  154 

V.  Jeffries,  47  IVIiss.  686.    §  119. 
Lay  V.  Succession  of  O'Neil,  29  La 

Ann.  722.     §  20. 
Layng  v.  Paine,  Willes,  571.    §  429. 
Lea  V.  Bumm,  88  Pa  St  287.    §§  169, 

170. 
Lead  Smelting  Co.  v.  Richardson,  8 

BuiT.  1341.    §  266. 
Leai-d  v.  Leard,  30  Ind.  171.    §  137. 
Learned    v.    Corley,    43    Miss.    689. 

§§  219,  234,  241,  246,  324 
Leavenworth  v.  Brockway,  2  Hill, 

201.    §  184 
Leavenworth  Co.  v.  IVIiller,  7  Kan. 

479.    §  124 
Leavenworth,  etc.  R.  R.  Co.  v.  United 

States,  92  U.  S.  733.    §  379. 
Le  Couteulx  v.  Buffalo,  33  N.  Y.  833. 

§380. 
Lee  V.  Barkhampsted,  46  Conn.  213. 
§240. 

V.  Carlton,  3  T.  R.  642.    §  115. 

V.  Clary,  38  Mich.  223.    §  890. 

V.  Cook,  1  Wyom.  T'y,  418.    §206. 

V.  Forman,  3  Met  (Ky.)  114  §  401. 

V.  Kmg,  21  Tex.  577.     §  184 

V.  Lmcoln,  1  Story,  610.     §  254 

V.  Smipson,  3  C.  B.  871.    §§  355, 
429. 

V.  State,  49  Ala  43.    §  448. 
Lees  V.  Summersgill,    17  Ves.    508. 

§212. 
Leese  v.  Clark,  20  Cal.  387.    §  800. 
LeffingweU  v.  Warren,  2  Black,  599. 

§§  185,  186,  480. 
Leforest  v.   Tolman,   117  Mass.   109. 

§208. 


CASES    CITED. 


IxvU 


Leftwiche's  Case,  5  Rand.  657.    §  166. 
Legg  V.  Mayor,  etc.  43  Md.  203.   gg29, 

41,  42,  45, 110,  183,  294. 
Leggate  v.  Clark,  111  Mass.  308.   § 458. 
Leggett  V.   Hunter,    19   N.    Y.    445. 

§194. 
Lehigh  Co.  v.  Meyer,  102  Pa  St  479. 

g§  223,  267. 
Lehigh  Water  Co.  v.  Easton,  121  U.  S. 

388.    g§  378,  384. 
Lehman,  Durr  &  Co.  v.  Robinson,  59 
Ala.  219.     §  255. 

V.  McBride,  15  Ohio  St  573.  §§  80, 
131,  132,  135. 
Leigh  V.  Kent,  3  T.  R  362.    §§  137, 
310. 

V.  Thornton,   1   B.   &  Aid,    625. 
§426. 
Leighton  v.  Walker,  9    N.    H.    59. 

§§  142,  154. 
Leitensdorfer  v.  Webb,  20  How.  176. 

§19. 
Lelajid  t.  Tousey,  6  Hill,  328.   §§  202, 
399. 

V.  Wilkinson,  6  Pet  317.    §  194. 
Lemp  V.  Hastings,  4  Greene  (la.),  448. 

§313. 
Leonard    v.  Canton,    35    Miss.    189. 
§§  300,  365,  380. 

V.  Columbia  N.  Co.  84  N.  Y.  48. 
§256. 

V.  Columbia  St  Nav.  Co.  84  N.  Y. 
48.     §  14. 

V.  Wiseman,  31  Md.  201.  §  237. 
Leonie  v.  Taylor,  20  Mich.  148.  §  234. 
Leroy  v.  ChaboUa,  2  Abb.  (U.  S.)  448. 

§  283. 
Les   Bois  v.  BrameU,  4    How.    449. 

§201. 
Leschi  v.  Territory,  1  Wash-  T'y,  13. 

§§  104,  166. 
Lessley  v.  Phipps,  49  Miss.  790.  §§  164, 

477. 
Lester  v.  Garland,  15  Ves.  248.  §§111, 

112. 
Leverson  v.  Regina,  L.  R  4  Q.  B.  394. 

§§  301,  310. 
Levet's  Case,  1  Hale.  474.    §  355. 
Levy  V.  State,  6  Ind.  381.     §  198. 
e 


Levy  V.  Stewart,  11  Wall.  ?44.    §  368. 
Lewis  V.  Aylott,  45  Tex.  190.     §  287. 

V.  Brackturidge,   1   Blackf.  230. 
§306. 

V.  Calor,  1  Post.  &  Fin.  306.  §  115. 

v.  Foster,  1  N.  H.  61.     g§  164, 166. 

V.  McClure,  8  Ore.  273.     §  396. 

V.  Mcllvaine,  16  Ohio,  347.   §  164 

V.  State,  3    Head,   137.    §§    291, 
463. 

V.  Stout  22  Wis.  234.     §  155. 

V.  Webb,  3  Me.  326.     §  119. 

V.  Woodf  oik,  85  Tenn.  25.     §  104. 
License  Cases,  5  How.  504.    §  7. 
Lide  V  Parker,  60  Ala.  165.    §  184. 
Life  Ins.  Co.   v.  Ray,  50  Tex.  512. 

§463. 
Lillard  v.  McGee,  4  Bibb,  165.     §  202. 
Lima  v.  Cemetery  Asso.  42  Ohio  St 

128.     §§  367,  380. 
Limestone  Co.  v.  Rather,  48  Ala.  433. 

§448. 
Lincoln   v.  BatteUe,    6    Wend.    475. 

§§  190,  297. 
Lincoln,  etc.  Asso.  v.  Graham,  7  Neb. 

173.     §  201. 
Lindenmuller  v.  People,  21  How.  Pr. 

150.     §  407. 
Lindsay  v.  Cundy,  L.  R  1  Q.  B.  Div. 
358.     §§  230,  403. 

V.  Williams,  17  Ala.  229.    §  298. 
Lindsey  v.   Rottaken,   32  Ark.   619. 
§321. 

V.  Rutherford,  17  B.   Mon.   245. 
§336. 
Lindzey  v.  State,  65  Miss.  542.   §§  142, 

470. 
Lming  v.  Bentham,  2  Bay,  1.     §  842. 
Linn  v.  Scott  3  Tex.  67.     §  201. 
Linsing  v.   Washburn,  20  Cal   534. 

§119. 
Linton's    Appeal,    104   Pa.    St   228. 

§284. 
Linton  v.  Blakeney  Joint  Co-op.  So- 
ciety, 3  H.  &  C.  853.     §§  164,  225. 
Lion  Ins.  Asso.  v.  Tucker,  L.  R  12 

Q.  B.  Div.  180.     §§  239,  240,  247. 
Lippencott  v.  Leeds,  77  Pa.  St  420. 

§33a 


Lxviii 


CASES    CITED. 


Lippincott  v.  Hopkins,  57  Pa.  St.  328. 

§338. 
Lipscomb  v.  Dean,  1  Lea,  546.    §  8. 
Litch  V.  Brotherson,  25  How.  Pr.  416. 

§482. 
Litbbridge  v.  Chapman,  15  Vul  Abr. 

103.     §  424. 
Litchfield  v.  Vemon,  41  N.  Y.  123. 

§  362. 
Little  V.  Poole,  9  B.  &  C.  192.     §  336. 
Littlefield  v.  Winslow,  19  Me.   394. 

§365. 
Little  Rock,  etc.  R  R.  Co.  v.  Barker, 
39  Ark.  491.     §  371. 

V,  HoweU,  31  Ark.  119.     §§  215, 
239,  241. 
Little  Schuylkill  Nav.   Co.  v.  Rich- 
ards, 57  Pa.  St.  142.     §  377. 
Liverpool  Borough  Bank  v.  Turner, 

2  De  G.  F.  &  J.  502 ;  30  L.  J.  Cli. 

139.    §§203,447. 
Livingston  v.  Harris,  11  Wend-  329. 
§337. 

V.  Jordan,  Chase's  Dec.  454   §  20. 

V.  Moore,  7  Pet.  469.     §  185. 

V.  Van  Ingen,  9  John.  507.    §  202. 
Lobrauo    v.   NeUigan,  9  Wall    295. 

§  194. 
Lock  V.  Miller,  3  Stew.  &  Port  13. 

§§  139,  290. 
Locke's  Appeal,  72  Pa.  St  491.    §§  67, 

72,  75. 
Lockett  V.  Usry,  28  Ga.  345.    §§  10, 

482. 
Lockliart  v.  Troy,  48  Ala.  579.    §  135. 
Lockwood  v.  Crawford,  18  Conn.  361. 

§§  184,  190,  192. 
Logan   V.   Courtown,    13    Beav.   22. 
§237. 

V.  State,  3  Heisk.  442.    §  104. 

V.  Walton,  12  Ind.  639.     §  206. 
Lohman  v.  State,  81  Ind.  15.    §  303. 
Lombard  v.  Antioch  College,  60  Wis. 
459.     §  170. 

v.  Trustees,  etc.  73  Ga.  322.    §  322. 

V.  Whiting,  Walker  (Miss.),  229. 
§392. 
London   Tobacco   Pipe     Makers    v. 

Woodruffe,  7  B.  &  C.  838.    §  285. 


Long  v.  Gulp,  14  Kan-  413.      §§  217, 

219. 
Longes    v.    Kennedy,    2    Bibb,   607. 

§§  296,  306. 
Longey  v.  Leach,  57  Vt  377.    §  400. 
Longlois    V.    Longlois,    48    Ind-    60. 

§§  133,  137,  168. 
Looker  v.  Davis,  47  Mo.  140.    §§  223, 

224 
Looney    v.  Hughes,    30    Barb.    605, 

§449. 
Lord  V.  Parker,  3  Allen,  127.    §  290. 
Lord  Advocate  v.  Sinclair,  L.  R.  1 

Scotch  App.  178.    §310. 
Lormg  v.  Hailing,  15  John.  119.   §  253. 
Lorman  v.  Benson,  8  IVIich-  18.   §  181. 

v.  Clarke,  2  McLean,  568.     §  185. 
Losch  V.  St  Charles,  65  Midi.  555. 

§102. 
Lougee  v.  Washburn,  16  N.  H.  134 

§184 
Loughridge  v.  Huntington,  56  Ind. 

253.     §  114 
Louisiana  v.  New  Orleans,  102  U.  S. 
203.     §§  471,  476. 

v.  Pillsbuiy,  105  U.  S.  278.   §§  78, 
94 
Louisiana  State  Bank  v.  Flood,  3  Mai"t 

(N.  S.)  341.     §  193. 
Louisiana     State     Lottery     Co.     v. 

Richoux,  23  La,  Ann.  745.     §88. 
Louisville  v.  Commonwealth,  9  Dana, 
70.     §  285. 

v.  Savmgs  Bank,  104  U.  S.  469. 
§§  104,  110,  182,  183. 
LouisvUle,  etc.  Co.  v.  BaUard,  2  Met 

(Ky.)  168.     §§  85,  93,  96. 
Louisville,  etc.  R  R  Co.  v.  County 
Court  1  Sneed,  668.    §§  317, 
320,  331. 

V.  Mississippi,  133  U.  S.  587.  §  185. 
Lovejoy   v.    Whipple,    18    Vt    379. 

§336. 
Lowenberg  v.  People,  27  N.  Y.  336. 

§168. 
Lower  Chatham,  In  re,  35  N.  J.  L. 

497.     §  237. 
LovvTides  County  v.  Hunter,  49  Ala. 

507.    §§  102,  170. 


OASES   CITKD. 


Ixii 


Lowry  v.  FrancLs,  3  Yerg.  534  §  472. 
Lucas  V.  Commissioners,  44  Ind.  541. 
§330. 

V.  Ladew,  38  Mo.  342.    §  184. 

V.  McBlair,   13    Gill    &    J.    265. 
§310. 
Lucas  County  v.  Chicago,  B.  &  Q.  R'y 

Co.  67  Iowa,  541.    §  133. 
Luck  V.  State,  96  InA  16.    §  295. 
Lucy    V.    Leviugton,    1    Vent    175. 

§194. 
Ludeling  v.  His  Creditors,  4  Mart. 

(N.  S.)  603.    §  482. 
Ludington  v.  United  States,  15  Ct  of 

CL  453.     §  259. 
Luehrman  v.  Taxing  Dist.  2  Lea,  425. 

§§  88,  97. 
Lueken  v.  People,   3  IlL   App.  375. 

§375. 
Luke  V.   Calhoun   Co.   56  Ala.   415. 
§167. 

V.  CaUioun  Co.  52  Ala  115.  §  305. 
Luhug  V.  Racme,  1  Biss.  316.  §  120. 
Lull  V.  Fox,  etc.  Improvement  Co.  19 

Wis.  100.     §  377. 
Lusher  v.  Scites,  4  W.  Va.  11.     g§  8, 

181,  183. 
Luther  v.  Saylor,  8  Mo.  App.  424. 

§§  87,  88. 
Lycoming  F.  Ins.  Co.  v.  Woodworth, 

83  Pa  St  323.     §  263. 
Lyddy  v.  Long  Island  City,  104  N.  Y. 

218.     §§  138,  140. 
Lyman  v.  Martin,  2  Utah,  136.     §  41. 
Lyn  V.  Wyn,  Bridg.  122.     §  217. 
Lynch  v.  State,  9  Ind,  541.     §  343. 
Lynchburg  v.  N.  &  W.  R.  R.  Co.  80 

Va237.    §280. 
Lynde  v.  Noble,  20  John.  80.    §  435. 
Lynes  v.  State,  5  Port.  236.     §  399. 
Lyon    V.    Jerome,    26    Wend.    485. 
§387. 

V.  Smith,  11  Barb.  134    §  154 

Mabry   v.    Baxter,    11     Heisk.    682. 

§§  306,  482. 
MacDougall  v.  Paterson,  11  C.  B.  755. 

§§  258,  461,  462. 
Mace  V.  Cammel,  Lofft  782.    §  213. 


Macnaghten's  Case,  10  C.  &  F.  20a 

§  355. 
Macnawhoe  Plantation  v.  Thompson, 

30  Me.  365.     §§  365,  464 
Macoleta  v.  Packard,  14  CaL  179.   §  19. 
Macon  v.  Macon  Savings  Bank,  60 

Ga  133.    §  280. 
Macon,  etc.  R.  R.  Co.  v.  Johnson,  38 
Ga  409.    §  371. 

V.  Little,  45  Ga  370.    §  26. 
Maddox  v.  Graham,  2  Met  (Ky.)  56. 

§§  138,  378. 
Madison,  etc.  P.  R  Co.  v.  Reynolds,  3 

Wis.  287.    §  260. 
Magruder    v.    Canoll,    4    Md.    335. 
§§  215,  239,  480. 

v.  State,  40  Ala  347.    §  142. 
Maliomet  v.  Quackenbush,  117  U.  S. 

508.     g§  93,  96. 
Mahoney  v.  Wright  10  Irish  C.  L. 

(N.  S.)  420.     §§  147,  157. 
IMahoon  v.  Greenfield,  53  Miss.  434 

§355. 
Maize  v.  State,  4  Ind.  342.    §§  67,  75. 
Malcolm  v.  Rogers,  5  Cow.  188.  §  403. 
Mallan    v.    May,   13  K  &  W.  511. 

§  250. 
IMallett    V.    Simpson,    94    N.   C.    37. 

§345. 
Maloney    v.   Bmce,  94  Pa  St  249. 

§364 
IMalonny  v.  Mahar,  1  Mich.  26.    §  309. 
Mallory  v.   HUes,  4  Met  (Ky.)    53. 

§104 
IMaUoy  v.  Commonwealth,  115  Pa  St 

25.    §157. 
Maltby  v.  Cooper,  Morris   (la),  59. 

§426. 
Maudere  v.  Bonsignore,  28  La  Ann. 

415.     §  194 
Maugun  v.  Webster,  7  GUI,  78.     §  295. 
INIanhattan  R  R  Co.,  Matter  of,  103 

N.  Y.  301.     §  457. 
Manlove  v.  White,  8  CaL  376.    §  136. 
Manly    v.    Downing,    15    Neb.    637. 

§398. 
Mann  v.  lUinois,  94  U.  S.  113.     §  7. 

V.  McAtee,  37  CaL   11.     §§  133. 
206,  482. 


Ixx 


CASES   CITED. 


Mansell  v.   Regina,  8  E.  &  B.  111. 

§§  307,  313. 
Manuel  t.  IManuel,  13  Ohio  St.  458. 

§§  283,  287. 
Maple   V.    Myers,    12    Pa,    St    123. 

§3G4. 
Maple  Lake  v.  Wright  Co.  13  Minn. 

403.     t;§  215,  219. 
Marblehead  v.  County  ComTS,  5  Gray, 

451.     §  388. 
Marchant  v.  Langworthy,  6  HUl,  646 ; 

3  Denio,  526.     §  453. 
Marmer  v.  Dyer,  3  Me.  165.    §  342. 
Market  Bank  v.  Pacific  Bank,  27  Hun, 

465.     §  306. 
Marqueze  v.   Caldwell,  48  Miss.  23. 

§256. 
Marion  v.  State,  20  Neb.  233.     §§  467, 

469,  470. 
Mark's  Ex'r  y.  RusseU,  40  Pa  St.  372. 

§115. 
Mai'ks  V.  Trustees  of  Purdue  UniTer- 

sity,  37  Ind.  161.    §  117. 
Marquis  of  Chandos  v.  Commission- 
ers, 6  Ex.  464.     §  362. 
Maxr  V.  Enloe,  1  Yerg.  452.     §  8. 
Mai-sh  V.  Higgins,  9  C.  B.  551.  §§  463, 
481. 

V.  Nelson,  101  Pa.  St.  51.     §  366. 

V.  Supervisors,  43  Wis.  503.  §  452. 
Marshall  v.  Grimes,  41  Miss.  27.  §  333. 

V.  Vultee,    1    E.   D.  Smith,  294. 

§§  207,  443. 

Marshalsea's  Case,  10  Rep.  73o.  §  300. 

Marson  v.  Lund,  13  Q.  B.  664.     §  462. 

Marston  v.  Tryon,   108  Pa,   St.  270. 

§  358. 
Martin,  Ex  parte,  L.  R.  4  Q.  B.  Div. 

212.     §  341. 
Martin  t.  Archer,  3  HUl  (S.  C),  211. 
§434. 

V.  Broach,  6  Ga.  21.     §§  77,  88. 

V.  Ford,  5  T.  R  101.     §  349. 

V.  Gleason,  139  Mass.  183.     §  283. 

V.  Hemming,  18  Jur.  1002.    §  300. 

V.  Hewitt,  44  Ala,  418.     §  97. 

V.  Hughes,  67  N.  C.  293.     §  476. 

V.  Hunt<»-r"s  Lessee,  1  Wheat  326. 
g§  21,  339,  347,  307. 


]\Iartin  v.  Jennings,  10  La.  Ann.  553. 
§303. 
V.  Martin,  51  Me.  366.    §  398. 
V.  Martin,  1  Sm.  &  M.  176.    §  184. 
V.  O'Brien,  34  Miss.  31.     §§  239, 

340. 
V.  Robinson,  67  Tex.  368.     §  333. 
V.  State,  33  Tex.  314.     §  306. 
V.  Waddle,  16  Pet  411.     §  378. 
Martindale  v.  Martindale,  10  Lad,  566. 

§  133. 
MartinsvUle  v.  Frieze,  33  Lid.   507. 

§132. 
Marvm  v.  Bates,  13  Mo.  217.     §  424. 
Mason  v.  Armitage,  13  Ves.  36.  §  213. 
V.  Boom    Co.    3  Wall    Jr.    353. 

§221. 
V.  Crosby,  Davies,  303.     §  427. 
V.  Finch,  3  IlL  233.     g§  215,  245. 
V.  Haile,  12  Wheat  370.    §§  471, 

476. 
V.  Harper's  Ferry  Bridge  Co.  17 

W.  Va.  397.     §  157. 
V.  Johnson,  24  111.  159.     §  424. 
V.  Mason's  Widow,   12    La.   465. 

§184. 
V.  Mulliohi,  6  Dana,  140.    §  198. 
V.  Rogers,  4  Litt  377.     §  334 
T.  Spencer,  35  Kan.  513.    §§  139, 

130. 
T.  Wash,  1  HL  16.    §  297. 
Masterson    v.  Beasly,  3    Ohio,    301. 

§430. 
Mastronada   v.    State,    60   Miss.  86. 

§§  164,  166. 

Matheson  v.  Heai-m,  29  Ala.  210.  §  318. 

Mathews  v.  Densmore,  43  Mich.  461. 

§  393. 

V.  Shores,  24  lU.  37.     §§  339,  309. 

Mathewson  v.  Phcenix  Iron  Foxmdry, 

30  Fed.  Rep.  281.    §  168. 
Mathieson  v.  Harrod,  L.  R  7  Eq.  270. 

§458. 
Matthews,    Ex    parte,    53    Ala    51. 

§§  256,  333. 
Matthews    v.    Ansley,    31    Ala    20. 
§§  17, 184. 
V.  Commonwealth,  18  Gratt  089. 
§§  218,  241,  246,  367. 


CASES    CITED. 


Lxxi 


Matthews  v.   Phillips,  2    Salk.    424 
g424. 
V.  Sands,   29    Ala.   136.     §§   257, 

390. 
V.  Skinker,  03  Mo.  329.     §§  207, 

381. 
V.  Zane,  7  Wheat  164.    §  104. 
Matthewsou  v.  Speucer,  3  Sneed,  513. 

§483. 
Mattisoa  v.  Hart,  14  C.  B.  385.    §  258. 
Mattox    V.   Hightshue,    39    lud.    95. 

§458. 
MauU  V.  Vaughu,  45  Ala.  134.    §  476. 
Maxwell  v.  Collins,  8  Ind.  38.   §§  240, 

246. 
May  V.  Jameson,  11  Ark.  368.    §  190. 
May's  Heirs  v.  Frazee,  4  Litt  392. 

§194. 
May  V.  Great  W.  R'y  Co.,  L.  R.  7  Q.  B. 
377.     §g  237,  238. 
V.  Rice,  91  lud.  549.     §^  60,  64. 
Mayer,    Matter    of,    50    N.    Y.    507. 

§§  83,  88,  93. 
Mayers  v.  State,  7  Ark.  68.    §  166. 
Maynard  v.  Valentine,  2  Wash.  T'y,  8. 

§6. 
Mayor  v.  Davis,  6  Watts  &  S.  269. 
§329. 
V.  Dearmon,  2  Sneed,  121.    §§  119, 

124,  137,  154. 
V.  Hartridge,  8  Ga  23.    §§  363, 

366. 
V.  Howard,    6    Har.    &   J.    388. 

§§  239,  240,  283,  288. 
V.  Macon,  etc.  R,  R.  Co.  7  Ga.  221. 

§§  158,  378. 
V.  Mmor,  70  Ga.  191.     §  157. 
V.  Magruder,  34  Md.  381.      §  223. 
V.  State,  30  Md.  118.     §§  78,  82, 

164,  166. 
V.  State,  4  Ga.  26.     §§  77,  88. 
Mayor  of  Baltimore  v.  State,  15  Md. 

376.     §§  312,  330,  331. 
Mayor  of  Loudon  v.  The  Queen,  13 

Q.  B.  33.     g  139. 
Mayor,  etc.  v.  Baltimore,  etc.  R.  R  Co. 
6  Gill,  288.    §  386. 
V.  Central  R  R  etc.  Co.  50  Ga. 
620.     §  364. 


Mayor,  etc.  v.   Clunet,  23  Md.  469. 
§72. 
V.  Doris,  0  W.  &  S.  269.     §  370. 
V.  Dechert,  32  ^ihi  369.     §  170. 
V.  Fiuuey,  53  Ga.  317.     §  75. 
V.  Green  Mount  Cemetery,  7  Md. 

517.     §  243. 
V.  Groshon,  30  Md  430.     §  154. 
T.  Harwood,  32  Md.  471.    §  183. 
V.  Howard,    6    Har.    &    J.    38a 

§§  202,  215. 
V.  Jei^ey  Citj'  R.  R.  Co.  20  N.  J. 

Eq.  360.     §§  138,  145. 
V.  Lord,  17  Wend.  285 ;  18  id.  128. 

§§  207,  370,  441. 
V.  Marriott,  9  Md.  160.     §  462. 
V.  Moore,  6  H.  &  J.  381.    §§  213, 

322. 
V,  Ohio,  etc.  R.  R.  Co.  26  Pa.  St. 

365.     §  378. 
V.  Reitz,  50  Md.  575.     §§  93,  95. 
V.  Root,   8  Md.  95.    §§  218,  324 

410,  411,  428. 
V.  Sands,  105  N.  Y.  210.    §  341. 
V.  Second  Ave.  R  R  Co.  32  N.  Y. 

261.     §  385. 
V.  Trigg,    46    Mo.    288.    §§  131. 
132. 
Mays  V.   Cincinnati,  1  Ohio  St.  209. 

§§  365,  380. 
MaysviUe,  etc.  R  R  Co.  v.  Herrick, 

13  Bush,  122.     §  259. 
Maxey  v.  Loyal,  38  Ga.  531.    §  476. 
MaxweU  v.  Bay  City,  46  Mich.  27a 
§407. 
v.  Colhns,  8  Ind.  38.    §g  219,  428, 

429. 
v.  Goetschius,  40  N.   J.   L.  383. 

§480. 
V.  Wessels,  7  Wis.  103.    §  454. 
McAfee  v.  Southern  R  R  Co.  36  Miss. 

669.     §g  138,  148. 
McAnnich  v.  :Miss.  &  U.  R.  R  Co.  20 

Iowa,  338.     §  125. 
McAi-thur     v.    Nelson,    81    Ky.    67. 

§§  93,  96. 
McBee  v.  Hoke,  2  Speers,  138.    §  448. 
JMcBride's   Appeal,    72    Pa.  St  4Sa 
§254. 


lyyji 


CASES    CITED. 


McCabe  t.  Emerson,  18  Pa.  St  111. 
§10. 

V.  Kenny,  52  Hun,  514.     §  102. 
McCallie  v.  Chattanooga,  3  Head,  321. 

§  124. 
McCalment   v.  State,    77    Ind.    250. 

§167. 
McCann  v.  State,  18  Sm.  &  M.  471. 

§142. 
McCai-dle,    Ex   pai-te,    7  Wall   506. 

§§  165,  327,  330,  464. 
McCartee  v.  Orphan  Asylum  Society, 

9  Cow.  437.    §§  287,  825. 
McCarthy  v.  Commonwealth,  110  Pa. 

St  243.     §  129. 
McCarty   v.    Wells,    51    Hun,    171. 

§§  374,  375. 
McCarver  v.  Jenkins,  2  Heisk.  629. 

§448. 
McCaslin  v.  State,  44  Ind.  151.    §§  88, 

93,  96. 
McCloskey  v.  McConnell,  9  Watts,  17. 

§324. 
McClimg   V.  SiUiman,    3    Pet    270. 

§§  186,  368. 
McCluskey  v.  Cromwell,  11  N.  Y.  601. 

§§  234,  237. 
McComb  V.  Gilkey,  29  Miss.  146.  §  194. 
McConky  v.  Superior  Court  of  Ala- 
meda Co.  56  Cal.  83.    §  252. 
McCool  V.  Smith,  1  Black,  459.  §§  138, 
148,   152,   240,  247,  253,  291, 
846,  464. 

V.  State,  7  Ind.  379.    §  109. 
McCormack  v.  Terre  Haute,  etc.  R  R 

9  Ind.  283.     §  204. 
McCormick  v.  Alexander,  2  Ohio,  74. 
§§  207,  410. 

V.  Sullivant,  10  Wheat  202.  §  187. 
McCorry  v.   Kmg,    3    Humph.   267. 

§184 
McCowan  v.  Davidson,  43  Ga  480. 

§§  464.  465. 
McCracken  v.  Hayward,  2  How.  612. 

§g  206,  471,  477. 
McCraney  v.  McCraney,  5  Iowa,  232. 

§482. 
McCready  v.   Sexton,  29  Iowa,  356. 

§171. 


McCuen  v.  State,  19  Ark.  634.     g  167. 
McCulloch  V.    Maiyland,    4  Wlieat 
327.     §§  197,  307,  362,  473. 

T.  State.  11  Ind.  424.  §§  46,  330. 
McDade  t.  People,  29  Mich.  50.  §  37a 
McDaniel  v.  Webster,  2  Houst  305. 

§476. 
McDeed   v.    McDeed,    67    HI.    545. 

§§  184,  192. 
McDermut  v.  Lorillard,  1  Edw.  Ch. 

273.     §  223. 
McDonald  v.   Kuby,  3    Heisk.   607. 
§306. 

V.  Myles,  12  Sm.  &  M.  279.  §  184. 
McDonough,   In  re  Election  of,  105 

Pa  St  488.    §  459. 
McDougal  T.  Hennepin  Co.  4  Minn. 

184    §  428. 
McDougald  v.  Dougherty,  14  Ga  674 

§§  219,  28^1. 
McEwen  v.  Den,  24  How.  242.  §§  133, 
206. 

•V.  Montgomery  Ins.  Co.  5  Hill, 
104     §  440. 
McFarland  v.   Bank  of  the  State,  4 
Ark.  410.     §  283. 

V.  Butler,  8  Minn.  116.     §  478. 

V.  Stone,  17  Vt  173.     §  322. 
McFate's   Appeal,   105    Pa   St   323. 

§288. 
McGavick  t.  State,  34  N.  J.  L.  509. 

§§  159,  225. 
McGee  v.  McGee,  10  Ga  477.    §  341. 

V.  McCann,  69  Me.  79.    §  373. 
McGeehan  v.  Burke,  37  La  Ann.  156. 

§133. 
McGill  V.   State,    34    Ohio    St    239. 

§§  121,  122,  123. 
McGinnis  v.  State,  24  Ind.  500.  §  29a 
McGlade's  Appeal,   99    Pa    St   338. 

§  370. 
McGowan  v.  State,  9  Yerg  184    §  402. 
McGrath  v  State,  46  Md.  633.     §§  78, 

86,  88,  95. 
McGraw  v.  Walker,  2  Hilt  404.   §  114 
McGuire  v.  Evans,  5  Ired.  Eq.  269. 

§  220. 
Mclnery  v    Galveston,  58  Tex.  334 

§234 


CASES   CITED. 


Ixxiii 


Mclnifife  v.  Wheelock,  1  Gray,  COO. 

§  llf»- 
Mclntire  v.  Western  N.  C.  R  R  Co. 

67  N.  C.  278.    §  398. 
Mcintosh  V.  Lee,  57  Iowa,  356.   §  302. 
Mclntuit  V.  State,  20  Tex.  App.  335. 

§470. 
Mclntyre  v.  Ingraham,  35  !Miss.  25. 
§§  240,  245,  246,  276,  279,  282, 
300. 

V.  Marine,  93  Ind.  193.    §  132. 
Mclves  V.  Ragan,  2  Wheat  29.    §  427. 
McKee  v.  McKee,  17  Md.  352.    §g  255, 

256. 
M'Keen  v.  Delancy,  5  Cr.  32.    §§  187, 

191,  310,  317. 
McKenna  v.  Edmundstone,  91  N.  Y. 

231.    §157. 
McKennie  v.  Gorman,  68  Ala.  442. 

§47. 
McKenzie   v.    State,    11    Ark.    594. 
§333. 

V.  Wardwell,  61  Me.  136.    §  190. 
McKineron    v.   Bliss,  31   Barb.   180. 

§§  17,  184. 
McKinney  v.  Memphis  Overton  Hotel 

Co.  13  Heisk.  104.     §  124. 
McKinnon  v.   Bliss,   21   N.    Y.   206. 

§§  194,  298. 
McKune  V.  Weller,  11  Cal  49.    §§446, 

455. 
McLain  v.   New  York,  3  Daly,  32. 

§§  193,  198. 
McLaughlin  v.  Hoover,  1    Ore.   31. 
§§  151,  202,  283. 

V.  State,  66  Ind.  193.    §  454. 
McLeUan  v.  Young,  54  Ga.  399.    §  428. 
McLelland    v.    Shaw,   15    Tex.    310. 

§§  218,  322. 
McLeod   V.    Burrouglis,  9    Ga.   213. 
■       §§  10,  11,  253,  378. 
McLean  Coiinty  v.  Bloomington,  106 

111.  209.     §  364. 
McMahon  v.  Mayor,  eta  33  N.  Y.  642. 

§371. 
McMannrng  v.   Farrar,   46  Mo.  376. 

§  206. 
McMannis  v.   Butler,   49  Barb.   176. 

S§  463,  464. 


McMannus  v.  Garvin,   77  N.  Y.  36. 

§400. 
McMaster  v.  Lomax,  2  MyL  &  K  32. 

§300. 
McMeclien  v.  Mayor,  etc. ,  H.  &  J.  41. 

§§  164,  400. 
]\IcMicken  v.  Commonwealth,  58  Pa. 

St.  213.     §§  255,  256. 
McMUlan  v.  BeUows,  37  Hun,  214. 

§168. 
McMinn    v.    Whelan,    27    Cal.    300. 

§394. 
McMullen  v.  Guest,  6  Tex.  278.  §§  133, 

167. 
McNair  v.  Hunt,  5  Mo.  300.    §  19. 
McNamara  v.  ^Minxu  etc.  R.  R  Co.  12 

MinB.  388.     §§  206,  256,  482. 
McNeely  v.  Woodruff,  13  N.  J.  L.  352. 

§152. 
McNeil  V.  CoUinson,  130  Mass.   167. 
§373. 
V.  Commonwealth,  12  Bush,  727. 
§§  57,  136. 
McNichol  V.  Pacific  Exp.  Co.  12  Ma 
App.  401.    §  296. 
V.  United  States,  etc.  Agency,  74 
Mo.  457.    §  201. 
McNiel,  Ex  parte,  13  WaU.  236.  §  185. 
McNiel  V.  Holbrook,  12  Pet  84    §  185. 
McNulty  V.  Battj',  10  How.  72.  §  165. 
McPhail  V.  Gerrj-,  55  Vt  174     §  232. 
McPherson  v.  Leonard,  29  Md.  377. 

§§  63,  65. 
McQueen  v.  Middleton,  etc.  Ca  16 

John.  5.    §  207. 
INIcQuilkien  v.  Stoddard,  8   Blackf. 

581.    §162. 
McRae  v.    Holcomb,    46    Ark.    306. 
§§  222,  223,  224 
V.  Mattoon,  13  Pick.  53.     §  191. 
McRee  v.   M'Lemore,  8  Heisk.  440. 

§  165. 
McRoberts  v.  Washbume,  10  Minn. 

23.    §§  137,  145,  325. 
McVey  v.  McVey,  51  Mo.  406.     §  157. 
McWhorter  v.  Donald,  39  Miss.  779. 

§§  394,  400. 
McWilhams  v.  Adams,  1  Macq.  H.  of 
K  Cas.  120.     §§  196.  2b3,  2b8. 


Ixxiv 


CASES   CITED. 


Main  Street,  In  re,  98  N.  Y.  454.  §  257. 
Mead  v.  BagnaU,  15  Wis.  156.   §§  104, 
109,  160. 

V.  Stratton,  87  N.  Y.  493.     §  375. 
Meade  v.  Deputy  Marslial,  1  Brock. 

324    §218. 
Mears  v.  Stewart,  31  Ark.  17.     §  155. 
Mecliam    v.    McKay,    37    CaL    154. 

§  395. 
Mechanics',  etc.   Bank's  Appeal,   31 

Comi.  63.     §§  164,  223. 
Mechanics'    &     Traders'     Bank     v 

Bridges,  30  N.  J.  L.  112.     t5 159. 
Medbury  v.  Watson,  6  Met.  246,    §  373. 
Medford  v.   Learned,  16  Mass.  215. 

§  206. 
Medical  CoUege  v.   Muldon,  46  Ala. 

003.     g§  133,  135. 
Medley,   In  re,  134  U.  S.  160.    §  466. 
Meeks  v.  Vassault,  3  Saw.  206.     §  424. 
Meidel  v.  Anthis,  71  lU.  241.     §  374. 
Melody  v.  Reab,  4  Mass.  471.    §§  139, 

290,  347,  366,  400. 
Memphis    v.    Fisher,    9    Baxt.    239. 
§§  119,  124. 

V.  Laskie,  9  Heisk.  511.     §  428. 
Mempliis  F.  Co.  v.  Mayor,  4  Cold.  419. 

J$41. 
Mendon  v.  County  of  Worcester,  10 

Pick.  235.     §§  215,  288,  322. 
Menges  v.   Dentler,  33    Pa.  St.  495. 
§484. 

V.  Frick,  73  Pa.  St  137.    §§  111, 
114. 
Meracle  v.  Down,  64  Wis,  323.   §§  41, 

42,45. 
Mercer  v.  Ogilvy,  3  Paton,  434.  §112. 

V.  State,  17  Ga.  146.    §  206. 
Merchants'  Bank,  Re,  2  La.  Ann.  68. 

§109. 
Mercliants'  Bank  v.  Bliss,  13  Abb.  Pr. 
225.     §  358. 

V.  Cook,  4  Pick.  405.    §§  254,  346. 
Merchants'  Ins.  Co.  v.  Ritchie,  5  WaU. 

541.     §  165. 
Meredith    v.   Chancey,  59    Ind.  466. 

§114. 
Meriam  v.  Ilarsen,  2  Barb.  Ch.  270. 

§314. 


INIerriam,  In  re.  84  N.  Y.  596.     §  457. 
Merriani  v.  Moody's  Ex'rs,  25  Iowa, 

163.     §  380. 
Merrifield  v.  Robbins,  8   Gray,  150. 

§190. 
MerriU  v.  Grossman,  68  Me.  412.  §283. 

V.  Dawson,  Hempst.  563.    g«^  185, 
293. 

T.  Melcliior,  30  Miss.  516.     §  350. 

V.  Sherburne,  1  N.  H.  203.    §§  6, 
11,  164,  206. 
Merritt  v.  Knife  Falls  B.  Coi-p'n,  34 

Minn.  245.     §§  119,  125. 
Mersey  Steel  &  Ir.  Co.  v.  Naylor,  L. 

R.  9  Q.  B.  Div.  878.     §  322. 
Merwin  v.   Ballard,    66    N.   C.   398. 
§§  206,  482. 

V.  Chicago,  45  111.  133.     §  428. 
Meslike  v.  Van  Doren,  16  Wis.  319. 

§§  193, 198. 
Meshmeier   v.    State,    11    Ind.    482. 

§§  67,  169,  178,  180. 
Metropolitan  Asylum  Dist.  v.  HUl,  L. 

R.  6  App.  Cas.  208.     §  322. 
Metropohtan    Board    of    Health    v. 

Schmades,  10  Abb.  Pr.  (N.  S.)  205. 

§§  106,  160. 
Metroi^ohtan  Board  of  Works  v.  Steed, 

L.  R.  8  Q.  B.  Div.  447.    §§  219, 

252. 
Metropolitan    District    R'y    Co.    v. 

Sharpe,  L.   R.  5  App.  Cas.  431. 

§217. 
Metropolitan  Gas  Light  Co.,  Matter 

of,  96  N.  Y.  477.     §  169. 
Mew,  In  re,  31  L.  J.  Bankr.  89.  §  300. 
Mewherter    v.    Price,   11    Ind-  201. 

§§  87,  102,  170. 
Mewster  v.  Spalding,  6  McLean,  24. 

§185. 
Meyer  v.  Kalkmann,  6  Cal.  582.  §  397. 

V.  Meyer,  23  Iowa,  375.    §  422. 
Meyers  v.  Kirt,  57  Iowa,  421.    §§  373, 

376. 
lilichel  V.  Michel,  5  IMadd.  72.     §  279. 
Michell  V.  Brown,   1   E.  &  K   267. 

§§  142,  143,  144. 
Michigan  State  Bank  v.  Hastings,  1 

Doug.  (Mich.)  227.    §47a 


OASES   CITED. 


Lxxv 


MickleUnvait,    In    re,    11    Ex.    4rj2. 

§  363. 
Middleton,  Matter  of  Village  of,  83 

N.  Y.  196.    §  170. 
Middleton  v.  New  Jersey,  etc.  Co.  26 
N.  J.  Eq.  269.     §g  133,  134, 
167. 
V.  Sage,  8  Conn.  221.     §  386. 
Midland  R'y  Co.  v.  Anibergate  R'y 
Co.  10  Hare,  369.   g§  231,  403. 
V.  Pye,  10  C.  B.  (N.  S.)  191.   §  407. 
Migueault  v.  Malo,  L.  R.  4  P.  C.  136. 

^310. 
MUbiiru  v.  State,  1  Md.  17.    §§  218, 

334,  246.  411. 
Miles    V.    McDermott,    31    CaL   272. 
§115. 
V.  State,  40  Ala.  39.    §§  143,  143. 
V.    WiUiams,    1    P.    Wms.    249. 
§§  390,  39  L 
Milford   V.  Worcester,  7    Mass.   48. 

^  336. 

MiUer"s  Case,  1  W.  Black.  451.    §  165. 

Miller  v.   Avery,   2    Barb.    Ch.   583. 

§397. 

V.  Craig,  11  N.  J.  Eq.  175.     §  370. 

V.  Edwards,  8  Colo.  528.    §§  137, 

138. 
V.  Fiery,  8  GiU,  147.     §  10. 
V.  Goodwin,  70  IlL  659.    §  41. 
V.  Graham,  17  Ohio  St  1.  §§  206, 

482. 
V.  Grandy,  13  Mich.  540.    §  420. 
V.  Hurford,  11  Neb.  377.    §  57. 
V.  Kirkpatrick,    29    Pa.   St   226. 

§338. 
V.  McQuerry,     5     McLean,    469. 

§393. 
V.  Mercier,  3  Mart   (N.  S.)  236. 

§156. 
V.  MUler,  16  Mass.  59.    §  206. 
V.  Miller,  44  Pa,  St.  170.     §  327. 
V.  Moore,    1    E.   D.    Smith,   739. 

§§  200,  476. 
V.  Reynolds,  5  Martin  (N.  S.),  665. 

§463. 
V.  Ruble,  107  Pa.  St.  395.    §  458. 
V.  Salomons,  7  Ex.  560.     §§  196, 
237,  238,  246,  259. 


MUler  V.  State,  3  Ohio  St  475.    §§  46, 
48,  49,  50,  80. 
V.  State,  33  Miss.  361.    §  138. 
V.  Wentworth,    83    Pa,   St    280. 
§458. 
]Millered  v.  Railroad  Co.  9  How.  Pr. 

238.     §  290. 
Mills    V.    Charlcton,    29   Wis.    400. 
§101. 
V.  St  Clair  Co.  8  How.  581.    §  378. 
V.  Scott,  L.  R  8  Q.  B.  496.     §  337. 
V.  Wilkins,  6  Mod.   62.    §§   196, 

210. 
V.  WUliams,  11  Ired.  558.    §§  380, 
473. 
]Millvale  Borough  v.  Evergreen  R'y 

Co.  131  Pa.  St  1.     §  101. 
Milne  v.  Huber,  3  McLean,  212.    §  168. 
Milwaukee,  etc.  R.  R.  Co.  v.  Faribault, 
23  Minn.  167.     §  388. 
V.  MUwaukee,  34  Wis.  271.    §  364. 
Minis  V.  Swartz,  37  Tex.  13.     §  293. 
Miner  v.  Clark,  15  Wend.  425.     §  440. 
Minei-s'   Bank    v.   United    States,    1 

Greene  (la,),  553.    §§  378,  473. 
jMmet  V.  Leman,  20  Beav.  269.     §§  32 1, 

333,  407. 
Minis  V.  United  States,  15  Pet  445. 

§§  218,  222. 
Minneapolis  Gas  L.  Co.  v.  Minneapo- 

hs,  36  IVImn.  159.     §  384. 
Minor  v.  CardweU,  37  Mo.  353.    §  12. 
V.   Mechanics'  Bank,   1  Pet  46. 
^  246,  460,  462. 
Minturn    v.    Larue,    23     How.    435. 

§§  365,  378,  380. 
Mirehouse  v.  Rennell,  1   CL  «fc  Fin. 

546.    ^237,238. 
Mississippi,    etc.    Co.    v.  Prince,    34 
•Minn.  71.    §§  78,  87,  88,  103,  170. 
IMissouri,  etc.  R  R  Co.  v.  K  P.  R.  R. 
Co.  97  U.  S.  491.     §  379. 
V.  Lee,  35  Am.  &  Eng.  R  R  Cas. 
364    §  371. 
3kIitcheU  V.  Doggett  1  Ha.  356.    §  164. 
V.  Dimcan.  7  Fla.  13.     §§  143, 151, 

202,  383,  288,  399,  463. 
V.  Halsey,  15  Wend.  241.    §  156. 
V.  Mitchell,  5  :\Iadd.  72.     §  24& 


Ixxvi 


CASES   CITED. 


MitclieU  T.  MitcheU,  1  Gill,  66.    §§  207, 
434,  437. 

V.  Eockland,  45  Me.  496.    §  366. 

V.  Tiicker,  10  Mo.  262.     §  19. 

T.  United  States,  9  Pet.  732.    §  19. 

V.  Wells,  37  Miss.  235.     §  188. 

V.  Woodson,  37  Miss.  567.   §§  111, 
253. 
Mitford  V.  ElUott.  8  Taunt  13.    g  228. 
MLxer  v.  Sibley,  53  IlL  61.    §  368. 
Moar  V,  Covington  City  Nat  Bank, 

80  Ky.  305.    §  112. 
Mobile  V  Rowland,  26  Ala.  498.   §  428. 
Mobile  Bay  Road  Co.  v.  Yeind,  29 
Ala,  325.     §439. 

V.  Malone,  46  Ala.  391.     §  283. 
Mobile,  etc.  R.  R.  Co.  v.  State,  29  Ala. 

573.    §§104,169. 
Mobile  Savings  Bank  t.  Patty,   16 

Fed.  Rep.  751.     §  161. 
Mobile  &  O.  R.  Co.  v.  Whitney,  39 

Ala.  471.    §12. 
Modawell  v.   Holmes,  40  Ala.    391. 

§306. 
Moeller   v.    Harvey,    16    Phila.    66. 

§262. 
Moers  v.  Reading,  21    Pa.  St   189. 

§75. 
Mohawk  Bridge  Co.  v.  Utica,   etc. 

R.  R  Co.  6  Paige,  554.     §  164. 
Mohawk,  etc.  R.  R.  Co.,  Matter  of,  19 

Wend.  143.    §  452. 
Monck  V.   Hilton,   2    Ex.   Div.  268. 

§240. 
Monet  V.  Jones,  10  Sm.  &  Marsh.  237. 

§136. 
Mongeon   v.  People,  55  N.  Y.  613. 

g§  10,  136,  138,  143,  167,  218,  225- 
Monk  V.  Jenkins,  2  Hill's  Ch-    12. 

§§  392,  454 
Monroe  v.   Douglass,  5  N.  Y.    447. 
§§  184,  297. 

V.  Paddock,  75  Ind.  422.    §  113. 
Monroe  Co.  Com'rs  v.  May,  67  Ind. 

562.     §  298. 
Monson    v,    Chester,    22    Pick.    385. 

§  400.     ■ 
Montagu'i    v.    Smith,    17  Q.  B.  688. 
§256. 


Montague  v.  State,  54  Md.  487.    §  19a 
Montclair  v.  Ramsdell,  107  U.  S.  155. 

§^  82,  84,  86,  88. 
Montel  &  Co.  v.  ConsoUdated  Coal 

Co.  39  Md.  164.    §  154. 
Montgomery  v.  Board  of  Education, 
74  Ga  41.     §  138. 
V.  Commonwealth,  91  Pa.  St  125. 

§129. 
V.  Deeley,  3  Wis.  709.    §  294. 
V.  Hobson,  Meigs,  437.     §  483. 
V.  Kasson,  16  Cal.  189.    §  472. 
V.  Plank  R  Co.  31  Ala.  76.  §  194. 
V.  State,  2  Tex.  App.  506.     §  166. 
V.  Wright  72  Ala.  411.     §  120. 
Montgomery,  etc.  Asso.  v,  Robinson, 
69  Ala,  413.    §§  78,  80,  82,  85,  88, 
93. 
Montom-svUle  Overseers  v.  Fairfield 
Overseers,  112  Pa.  St  99.     §  458. 
Monti-ose  Peerage,  1  Macq.  406.  §§  196, 

247. 
Montville  v.  Haughton,  7  Conn.  543. 

§§  329,  453. 
Moody  V.  SeamaH,  46  Mich.  74  §§  133, 
168. 
V.  State,  48  Ala.  115.    §§  24  41, 

43,  45,  181,  294,  300. 
V.  Threlkeld,  13  Ga.  55.     §  410. 
Moores  v.  Bunker,  29  N.  H.  420.  §  333. 
Moog  V.  Randolph,  77  Ala.  597.  §§  29, 

41,  43,  45,  200,  311. 
Moon  V.  Durden,  2  Ex.  22.  §g  20P,  464 
Mooney  v.  Union  Pacific  R  R  Co.  60 

Iowa,  346.     §  14 
Moore,  Ex  pai-te,  62  Ala.  471.    g§  87, 

103,  170. 
Moore  v.  Brown,  11  How.  424.    §  453. 
V.  Cooley,  2  Hill,  412.     §  398. 
V.  Gwynn,  5  Ired.  187.     §  192. 
V.  Houston,  3    Serg.   &    R  169. 

§253. 
V.  Indianapolis,     120    Ind     483. 

§431. 
V.  Kenockee,  75  Mich.  332.  §  134 
V.  Luce,  29  Pa.  St  260.     §  480. 
V.  McClief,  16  Oliio  St  51.     §  39a 
V.  Mausert  49  N.  Y.  332.    §§  133, 
137. 


CASES   CITED. 


Ixxvii 


Moore    v,    MaxwelL     18     Ark.    4G9. 
g  194. 
y.  New  Orleans,  33  La.  Ann.  726. 

^g  136,  180. 
V,  Police  Jiuy,  33  La.  Ann.  1013. 

§103. 
V.  Railroad  Co.  34  Wis.  173.  §154. 
V.  State,  43  N.  J.  L.  203.     §§  467, 

479,  480. 
V.  Usher,  10  Eng.  Ch.  107.    §  194. 
Moore's  Lessee  v.  Vance,  1  Ohio,  1. 

§140. 
Morant  t,  Taylor,  1  Ex.  D.  194.  §§  196, 

210. 
Morford  v.  Unger,  8  Iowa,  82.    §§  87, 

88,  101. 
Morgan  v.  BoUes,  36  Conn.  175.   §  400. 
V.  Crawshay,  L.  R.  5  H.  of  L.  304. 

§§266,  306,  311. 
V.  Davenport,  60  Tex.  230.   §  256. 
V.  Monmouth  Plank    R   Co.   26 

N.  J.  L.  99.     §  170. 
V.  Wolte,  37  Oliio  St  23.    §  123. 
V.  Smith,  4  Minn.  104.    §  229. 
V.  State,  13  LicL  448.     §  298. 
V.  Stell,  5  Binn.  318.     §  104. 
V.  Thorne,  7  M.  «&  W.  400.  §§  163, 
165. 
Morley  v.  Greenhalgh,  3  B.  &  S.  374 

§280. 
Morlot  V.   Lawrence,  1  Blatch.   608. 

§139. 
MorraU  v.  Sutton,  1  PhiL  533.  §§138, 

247. 
Morrill  v.  State,  38  Wis.  434.    §  232. 
Mon-is  V.  Barrett,  97  Eng.  C.  L.  139. 
§115. 
V.  Chicago,  etc.  R  R  Co.  65  Iowa, 

727.    §  14. 
V.  Davidson,  49  Ga.  361.    §§  181, 

293. 
V.  State,  62  Tex.  728.    §§  483,  484. 
V.  Vanderen,  1  Dall.  64.     §  17. 
V.  Van    Voast,    19   Wend.    283. 
§§  416,  442. 
Mon-is  Aqueduct  v.  Jones,  36  N.  J.  L. 

206.     §  307. 
Morris  Canal,  etc.  Co.  v.  Central  R.  R. 
Ca  16  N.  J.  Eq.  419.     §  37a 


Morris,  etc.  R  R  Co.  v.  Newark,  10 

N.  J.  Eq.  352.     §  388. 
Morris  &  Essex  R  R  Co.  v.  Central 

R  R  Co.  31  N.  J.  L.  205.     §  388. 
Morrissee  v.   Royal  British  Bank,  1 

C.  B.  (N.  S.)  67.     §§  133,  461,  462. 
Morrison  v.  Barksdale,  Harper,  101. 
§  310. 

V.  Fake,  1  Pin.  (Wis.)  133.     §  393. 

V.  Rice,  35  Minn.  436.    §  138. 

V.  St  Louis,  etc.  R  R  Co.  96  Mo. 
603.     §  132. 

V.  Springer,  15  Iowa,  304.    §  331. 

V.  State,  40  Ark.  448.     §  169. 

V.  Stevenson,  69  Ala.  448.     §  256. 

T.  Thistle,  67  :Mo.  596.    §  338. 
Morrow  v.  Wood,  56  Ala.  1.    §  418. 
Morse  v.  Goold,  11  N.  Y.  281.     §§  206, 
476. 

v.  Presby,  25  N.  H.  302.     §  391. 

V.    Williamson,    35     Barb.    472. 
§454. 
Mosby  V.  Ins.  Co.  31  Gratt  629.  §  137. 
Moseley  v.  Mastin,  37  Ala.  216.  §  306. 

V.  Tift  4  Fla.  402.     §  363. 
Moser  v.  White,  29  ]Mich.  59.     §  20L 
Moses   V.  Mayor,  etc.   52    Ala.   198. 

§90. 
Mosier  v.  Hilton,  15  Bai-b.  659.    §§  93, 

117. 
Mosley  v.  Vt  Mut  F.  Ins.  Co.  55  Vt. 

142.    §  306. 
Mostyn  v.  Fabrigas,  1   Cowper,  174 

§184 
Moulton  V.  Posten,  52  Wis.  169.  §  302. 
Moimsey  v.  Ismay,  34  L.  J.  Ex.  56 ;  3 

H.  &  C.  486.     §§  265,  300. 
Mount  v.  Kesterson,  6  Cold.  452.  §  447. 
Mt  Holly  Paper  Co.'s  Appeal,  99  Pa. 

St  513.    §  383. 
Mouras  v.  The  A.  C.  Brewer,  17  La. 

Ann.  83.     §  160. 
Movius  V.  Arthur,  95  U.  S.  144  §§  138, 

157. 
Moyce  v.  Newingtou,  4  Q.  B.  Div.  32. 

§246. 
Moyer  v.  Gross,  3  P.  «&  W.  171.    §  30a 

V.  Penn.  Slate  Co.  71  Pa  St  293. 
§371. 


Ixxviii 


CASES    CITED. 


Moyle  V.  Jenkins,  51  L.  J.  Q.  B.  112 ; 

L.  E.  8  Q.  B.  Div.  116.    §§  219, 

245. 
Mugler   V.   Kansas,   123    U.   S.  623. 

§370. 
Muhl's  Adm'r  v.  Mich.  Southern  R. 

R  Co.  10  Ohio  St.  272.     §  371. 
Muir  T.  Galloway,  61  Cal.  498.    §  115. 

V.  Keay,  L.  R.  10  Q.  B.  594.  §  262. 
Muldoon  V.  Levi,  25  Neb.  457.  §  97. 
MuEiey  v.  State,   16  Tex.   App.  53. 

§166. 
MuUaly  v.  Mayor,  etc.  6  T.  &  C.  168. 

§444. 
Mullen  V.  People,  31  111.  444     §§  142, 
143,  202. 

V.  State,  34  Ind.  540.    §  97. 
MuKord  V.  Clewell,  21  Oliio  St.  191. 

§§  374,  375. 
Mulligan  v.  Cavanagh,  46  N.  J.  L.  45. 

§  154. 
Mullin  V.  IMcCreary,  54  Pa.  St.  230. 

§  290. 
]\IuUuis  V.  Ti-easurer  of  Surrey,  L.  R. 

5  Q.  B.  Div.  170.     §§  222,  223. 
Munday  v.  Rahway,  43  N.  J.  L.  338. 

§475. 
]Mundy  v.  Monroe,  1  Midi.  68.    §  478. 
Munford  v.  Pearce,  70  Ala.  452.  §  194 
Municipal  Building  Society  v.  Kent, 

L.  R.  9  App.   Cas.  273.    §§235, 

407. 
MunicipaUty  v.  Hart,  6  La.  Ann.  570. 

§429. 
Municipality  No.  3  v.  Michoud,  6  La. 

Ann.  605.     §§  82,  103,  170,  480. 
Munn  V.  Burch,  25  111.  35.     §  295. 

v.  lUinois,  94  U.  S.  113.    §  370. 
Munro  v.  Butt,  8  E.  &  B.  754     §  324. 
Munroe  v.  Guilleaunie,  3  Keyes,  30. 

§  190. 
Munson  v.   Hallowell,  26  Tex.   475. 

§  256. 
Murdock  v.  Memphis,  20  Wall.  617. 

§§  154  156. 
Murfree  v.   Carmack,  4  Yerg.    270. 

§  111. 
Murphy,  In  re,  23  N.  J.  L.  180.   §  333. 
Murphy,  In  re,  1  Woohv.  141.     §  407. 


Murphy  v.  Leader,  4  Irish  L.   143; 

Jebb  &  Bourke,  75.     §  436. 
Murray  v.  Baker,  3  Wheat.  541.  §  424. 
V.  Charleston,  96  U.  S.  432.  §  475. 
V.  Gibson,  15  How.  133.    §  421. 
V.  Hoboken  Land  Imp.  Co.    18 

How.  284.    §  68. 
V.  Hobson,  1  Colo.  66.     I  260. 
V.  Keyes,  35  Pa.  St  384    §§  252, 

256. 
V.  New  York  Cent  R.  R  Co.  4 
Keyes,  274     §§  234,  246,  442. 
Muscogee  R.  R.  v.  Neal,  26  Ga.  121. 

§135. 
Musgrove  v.  Vicksburg,  etc.  R.  R  Co. 
50  Miss.  677.     §§  136, 102, 163, 164 
Mutual    Ass.    Society    v.  Watts,    1 

Wheat  279.    §  191. 
Myer  v.  Car  Co.  102  U.  S.  1.    §  156. 
Myers   v.    Conway,    55    Iowa,    166. 
§376. 
V.  FarreU,  47  Miss.  281.    §  393. 
V.  Manhattan  Bank,  20  Ohio,  295. 

§8. 
V.  Mai-shall    Co.    55    Miss.    344 

§154 
V.  Perigal,  2  D.  Mac.  &  G.  619. 

§236. 
V.  State,  1  Conn.  502.    §  208. 
Myrick  v.  Hasey,  27  Me.  17.    §  333. 

NaUe  V.  Ventress,  19  La.  Ann.  373. 

§184 
Napier  v.  Hodges,  31  Tex.  287.  §  288. 
Nash  V.  AUen,  4  Q.  B.  784     §  212. 
V.  MitcheU,  8  Hun,  471.    §  >.38. 
V.  State,    2    Greene    (la.),    286. 

§438. 
V.  SuUivan,  29  Minn.  206.    §  379. 
V.  Wliite's    Bank,    37    Hun,    57. 
§133. 
Nashville,  etc.  R  R  Co.  v.  Foster,  10 

Lea,  351.     §  13. 
National  Bank  v.  Barber,  24  Kao. 
534    §169. 
V.  Bryant,  13  Bush,  419.     §  299. 
V.  Com'rs,     14    Fed.     Rep.    23a 

§101. 
T.  :Matthews,  98  U.  S.  621.     §  327. 


CASES   CITED. 


Ixxix 


National  Bank  v.  Soutlieiu,  etc.  Co. 
55  Ga,  36.     g  88. 

V.  Whitney,  103  U.  S.  99.     g  327. 

V.  WUliams,  46  Mo.  17.     §  115. 

V.  Yankton  Co.   101    U.  S.   129. 
§§  70,  197. 
Naught  V.  Oneal,  1  111.  30.     §  164. 
Naylor   v.  Field,    29    N.  J.   L.   287. 

§149. 
Nazareth  L.  B.  I.  t.  Commonwealth, 

14  B.  Mon.  266.    §  153. 
Nazi'O  V.  Merchants'  Ins.  Co.  14  "Wis. 

295.    §§  211,  260. 
Neaderhauser  v.  State,  28  Ind.  257. 

§303. 
Neagle,  In  re,  39  Fed.  Rep.  833 ;  185 

U.  S.  1.    §  341. 
Neal  V.  Burrows,  34  Ark.  491.    §  447. 

V.  Moultrie,  12  Ga,  104.    §  424. 

V.  Roberts,  1  Dev.  &  Batt  L.  81. 
§331. 

V.  Sa\\'yer,  60  Ga.  352.    §  422. 
Neass  v.  Mercer,  15  Barb.  318.    §  478. 
Neeld's  Road,  1  Pa,  St  353.    §  283. 
Neely  v.  State,  4  Baxt  174.     §  175. 
Neelly    v.    Lancaster,    47  Aik.   175. 

§400. 
Neenan  v.  Smith,  50  Mo.  525.    §§  322, 

324. 
Neeves  v.  Biirrage,  14  Ad.  &  EL  (N.  S.) 

504.    §  181. 
Negro    Bell    v.   Jones,   10    Md.   322. 

§240. 
Neifing  v.  Town  of  Pontiac,  56  111 

172.     §  92. 
Neitzel    t.    Concordia,  14  Kan.  446. 

§231. 
NeUis  V.  Clark,  4  HiU.  424.     §  336. 
Nelson  v.  Allen,  1  Yerg.  360.    §§  307, 
309,  311. 

V.  Kerr,  2  T.  &  C.  299.     §  231. 

V.  McCrary,  60  Ala  301.     §§  15, 
184,  206,  476. 
Nesbitt  V.  Lushington,  4  T.  R  783. 

§264. 
Nester  v.  Busch,  64  Mich.  657.    §  102. 
Neuendorff  v,  Duryea,  69  N.  Y.  557. 

§§  90,  102. 
NevU  V.  Chfford,  63  Wis.  435.     §  129. 


New  V.  McKechnie,  95  N.  Y.    632. 

§  374. 
New  Albany,  etc.  R  R  Co.  v.  Con- 
nelly, 7  Ind.  32.     §  325. 
Newark  Plank  R  Co.  v.  Elmer,  9  N. 

J.  Eq.  754.     §  378. 
New  Bnmswick  v.  Williamson,  44  N. 

J.  L.  165.     §  159. 
NewburghTurn.  Co.  v.  Miller,  5  John. 

Ch.  113.     §  462. 
Newby   v.    Blakey,  3    H.   &  N.  57. 

§479. 
Neweberg  v.  Gaulter,  4  IlL  App.  348. 

§377. 
NeweU  v.  People,  7  N.  Y.  97.    §  324 

V.  Wheeler,  48  N.  Y.  486.    §  290. 
New  Haven  v.  Whitney,  36  Conn.  373. 

§§  140,  204,  325,  326. 
New  Jersey  v.    Wilson,   7    Cr.   164. 

§472. 
New  Jersey  Southern  R  R  Co.  v. 

Long  Branch  Com'rs,  39  N.  J.  L. 

28.     ^  388. 
Newland  v.  Marsh,  19  III.  370.     §§  252, 

332. 
Ne^  London  v.  Brainard,  22  Conn. 

552.     §§  380,  381. 
New  London  Northern  R  R.  Co.  v. 

Boston,  etc.  R.  R  Co.  102  Mass. 

389.     §§  138,  165. 
Newman,  Ex  parte,  9  Cal.  502.    §  330. 
Newman  v.  Emporia,  41  Kan.  583. 
§128. 

V.  Keffer,   1  Bnmner    CoL   Cas. 
502.    §  185. 

T.  Samuels,  17  Iowa,  518.    §  483. 
New  Orleans  v.  Holmes,  13  La.  Ann. 
502.     §  107. 

V.  Poutz,  14  La-  Aim.  853.    §  314. 

V.  Salamander  Ins.    Co.  25    La. 
Ann.  650.     §§  240,  332. 

V.  St   Romes,  9  La.    Ann.    573. 
^•§  207,  452. 
New  Orleans  Canal,  etc.  Co.  v.  Tem- 

pleton,  20  La.  Ann.  141.     §  298. 
New  Orleans,  etc.  R  R  Co.  v.  Hemp- 
liill.  35  Miss.  17.     §§  234,  236. 

V.  Municipalit}-,  7  La.  Ann.  148. 
§  429. 


Ixxx 


CASES    CITED. 


Newport  ]\Iai-sli  Tiustees,  Ex  parte, 

16  Sim.  346.     §^  337,  383. 
New  Portland  v.  New  Vineyard,  16 

Me.  69.    §§  108,  193. 
Newsom  V.  Greenwood,  4  Ore.  119. 
§§  164,  482. 

V.  Cocke,  44  Miss.  352.    §  831. 
Newton  v.  Cocke,  10  Ark.  169.  §  297, 

V.  Commissioners,  100  U.  S.  559. 
§473. 

Y.  Co^^'ie,  4  Bing.  234.     §  458. 
New  York  v.  MUn,  11  Pet.  102.  §  197. 
New  York  Cent.  etc.  R.  R.  Co.,  Mat- 
ter of,  60  N.  Y.  112.     §  369. 
New  York  Elevated  R.  R.  Co.,  Matter 

of,  70  N.  Y.  327.     §  183. 
New  York,  etc.  R.  R.  Co.  v.  Van  Horn, 

57  N.  Y.  473.  §§  133,  164,  480, 481. 
New  York  &  Brooklyn  Bridge,  Mat- 
ter of,  72  N.  Y.  527.     §  239. 
N.  Y.  Prot.  E.  Pub.  School,  Matter  of, 

47  N.  Y.  556.     §  452. 
Niantic  Savings  Bank  v.  Douglas,  5 

111.  App.  579.     §  390. 
Niblack    v.   Goodman,   67    Ind.  174. 

§§  132,  168. 
Nichol    V.   Nashville,  9  Humpli.  252. 

§§  365,  380. 
Nicholas  v.  Phelps,  15  Pa.  St.  36.  §  324. 
NichoU  V.  AUen,  1  B.  &  S.  934  §  205. 
Nichols  V.  Bertram,  3  Pick.  342.  §473. 

V.  Levy,  5  Wall  433.     §  187 

V.  Squu-e,  5  Pick.  168.     §  142. 

V.  Walter,  37  Minn.  264.    §  128. 

V.  WeUs,  Sneed  (Ky.),  255.    §  239. 
Nicholson  v.  Fields,  31  L.  J.  Ex.  235. 
§348. 

V.  Thompson,  5  Rob.   (La.)   357. 
§463. 
Nicol  V.  Paul,  L.  R.  1  Scotch  App.  131. 

§310. 
Niemeyer   v.  Wright,    75   Va.    239. 

§§  335,  336. 
NUes  V.  Ransford,  1  Mich.  338.   §390. 
Nixon    V.   Piffet,   16   La.   Ann.   379. 

§§  138,  152,  202. 
Noble  V.  State,  1  Greene  (Iowa),  325. 

.:$§  284.  287. 
Noell  V.  Fisher,  3  CaU,  215.     §  429. 


Nolen  V.  Harden,  43  Ark.  307.    §  324 
Norfolk  V.  Chamberlaine,  29  Gratt 

534.     §  206. 
Norman    v.   Heist,   5  W.   &  S.  171. 

§g  480,  484. 
Norris  v.  Crocker,  13  How.  429.  §§  11, 
142,  143. 

V.  Harris,  15  CaL  226.     §  184. 

V.  Hundred  of  Gawtiy,  Hob.  139. 
§112. 

V.  Ti-ustees,  etc.  7  G.  &  J.  7.  §  473. 

v.  Wrenshall,  34  Md.  492.     §  474. 
North  Bridgewater    Bank  v.  Cope- 
land,  7  AUen,  139.    §  206. 
North  Canal  St.  Road  Case,  10  Watts, 

351.     §§  140,  165,  464. 
North  Chicago  Rolling  Mills  Co.  v. 

Morrissey,  111  lU.  646.     §  371. 
N.  E.  R'y  V.  Leadgate,  L.  R.  5  Q.  B. 

161.    §  430. 
North  Hempstead  v.  Hempstead,  2 

Wend.  109.     §  337. 
Northrop   v.   Cooper,  23    Kan.  432. 

§114. 
Northwestei-n  Mauuf'g  Co.  v.  Wayne 

Circuit  Judge,  58  Midi.  381.  §  96. 
Norwegian    Street,   81    Pa    St  349. 

§g  455,  456. 
Norwich  Gas  Light  Co.  v.  Norwich 

City  Gas  Co.  25  Conn.  18.  §  378. 
Notley  V.  Buck,  8  B.  &  C.  164.  §  237. 
Nunally  v.  White,  3  Met.  (Ky.)  584. 

§329. 
Nuues    V.  WeUisch,    13    Bush,    363. 

^257. 
Nimn  V.  Fabian,  L.  R  1  Ch.  35.  §427. 
Nusser  v.  Commonwealth,  25  Pa.  St. 

126.    §§  143,  144,  158,  159. 
Nuth  V.  Tamplin,  L.  R.  8  Q.  B.  Div. 

253.     §§  218,  238,  259. 
Nutter  V.  Accrington   Local  Board, 

L.  R  4  Q.  B.  375.     §  230. 
Nymph,  Schooner,  The,  1  Sumn.  516. 

§356. 

Gates  V.  National  Bank,  100  U.  S.  339. 

§§  246,  332. 
Oakland  T'p  v.  Martm,  104  Pa.    St 

303.    §  33?. 


CASES   CITED. 


Ixxxi 


Oath  Before  Justice,  Matter  of,  12 

Coke,  130.     §  341. 
Oatinan  v.  Bond,  15  WLs.  20.     §  478. 
O'Brien  v.  County  CominLssioners,  51 
Md.  15.     g§  483,  484. 

V.  Dillon.   9  Ir.  Clu  (N.   S.)  318. 
§§  335,  336. 
O'BjTnes  v.  State,  51  Ala.  25.     §§  256, 

333. 
O'Conner  v.  Warner,  4  Watts  &  S. 

227.     §  10. 
O'Connor  V.  Towns,  1  Tex.  107.  §  112. 
Odell  V.  De  Witt,  53  N.  Y.  643.   §  341. 
O'DonneU  v.  Mclntyre,  37  Hun,  615. 
§456. 

V.  Sweeney,  5  Ala.  467.    §  336. 
O'Ferrall  v.  Simplot,  4    Iowa,  400. 

tiS  15,  184. 
O'FIaherty  v.  McDowell,  6  H.  L,  Cas. 

143.     §§  138,  145,  202,  204. 
Ogbourne  v.  Ogbourne's  Adni'r,  60 

Ala.  616.     §  154. 
Ogden  V.  Blackledge,  2  Cranch,  272. 
§§  10,  11,  137,  201,  206,  229. 

V.  FoUiott,  3  T.  R.  733.     §  12. 

V.  Saunders,  12  Wheat.  266. 
§§  169,  332,  465,  471,  472,  474, 
478,  479. 

V.  Sti-ong,  2  Paine,  584.  §§  137, 
234,  237,  239. 

V.  Witherspoon,  2  Haywood,  404. 
§137. 
O'Hanlon  v.  Myers,  10  Rich.  L.  128. 

§137. 
O'Hare  v.  National  Bank,  77  Pa.  St. 

96.    §  336. 
Ohio,  etc.  R  R.  Co.  v.  McClelland,  25 

IlL  140.    §  473. 
Oliio  Life  Ins.  &  Tr.  Co.  v.  Debolt,  16 

How.  416.     ^  319,  378. 
Oliio  Life  Ins.  etc.  Co.  v.  Merchants' 

Ins.  etc.  Co.  11  Humph.  1.    §  385. 
O'Kane  v.  State,  69  Ind.  183.    §  96. 
Olcott  V.  Frazier,  5  HilL  562.     §  456. 
U'Leary  v.  County  of  Cook,  28  IlL 
534.     §  96. 

V.  Frisbey,  17  III.  App.  553.    §  377. 
Oleson    V.  R.   R   Co.    36    Wis.   383. 

§§  136,  154 


OUve  V.  Walton,  33  Miss.  114    g§  218, 

246,  400. 
Olive  Cemetery  Co.  v.  Philadelphia, 

93  Pa,  St  129.     §  243. 
Oliver,  In  re,  17  Wis.  681.     §§  68,  73. 
Olmstcad,  Matter  of,  17  Abb.  New 

Cas.  320.    §  282. 
O'Meara  v.  Commissioners,  3  T.  &  C. 

236.     §  95. 
Omit  V.  Commonwealth,  21  Pa  St 

426.     §  157. 
Ong  V.  Simmer,  1  Cincin.   Sup.   Ct 

424     §  146. 
Openlieim  v.  Wolf,  3  Sandf.  Ch.  571. 

§306. 
Opinion  of   Justices,    7    Masa    523. 

§g  240,  250,  324,  348. 
Opinion  of  Justices,  117  Mass.  603. 

§473. 
Opinion  of  Justices,  126   Mass.  551. 

§307. 
Opinion   of  Justices,  136  Mass.  578. 

§321. 
Opinion  of  Justices,  41  N.   H.  553. 

§336. 
Opinion  of   Justices,  45  N.   H.  607. 

§294 
Opinion  of  Justices,  52  N.  H.  622. 

§181. 
Opinion  of    Justices,  22    Pick.   573. 

§331. 
Orange,  etc.  R  R  Co.  v.  Alexandria, 

17  Gratt  176.     §§  218,  240,  246. 
Ordway  v.  Centi'al  National  Bank  of 

Baltimore,  47  Md.  217.     §  360. 
Oregon,  etc.  Co.,  In  re,  3  Sawy.  614 

§136. 
Oregon  R'y  Co.  v.  Portland,  9  Ore, 

231.     §  388. 
O'Reilly  v.   Bard,   105  Pa.    St    569. 

§371. 
Oriental  Bank  v.  Freeze,  18  Me.  109. 
§§  10,  163. 

V.  Wright,  L.  R  5  App.  Cas.  843. 
§362. 
Ornamental  Woodwork  Co.  v.  Brown, 

2  H.  &  C.  63.    §§  237,  238. 
O'Rourke  v.  O'Rourke,  43  ilich.  5S. 
'       §184 


Ixxxii 


CASES    CITED. 


On-  V.  Baker,  4  Ind.  86.     §  364 

V  Riine,  45  Tex.  345.      §§  198, 
468. 
Osborn,     Ex    parte,    24     Ark.    479. 

§§  138,  148. 
Osborn  v.  Bank  of  U.  S.  9  Wheat 
788.     §  473. 

V.  Nicholson,  13  WaU.  662.     §  478. 
Osborne  v.  Huger,  1  Bay,  176.     §§  110, 

206. 
Osbm-n  v.  Staley,  5  W.  Va,  85.    g§  41, 

43,  43,  48. 
Oshe  V.  State,  37  Ohio  St  500.    §  80. 
Oswego  Bridge  Co.  v.  Fish,  1  Barb. 

Ck  547.     §  164. 
Ott  V.  Soulard,  9  Mo.  581.     §  295. 
Overfield  v.  Sutton,  1  Mete.  (Ky.)  621. 

§  256. 
Overmyer  t.  Wilhams,   15  Ohio,  31. 

§381. 
Overseers  v.   Overseers,  20  John.  1. 
§884. 

V.  Smith,  2  S.  «&  R.  368.     §  333. 
Overseers  of  Pittstown  v.  Overseers 

of  Pittsburgh,  18  John.  407,  §  344. 
Owen  V.  Boyle,  15  Me.  147.     §§  190, 
192. 

V.  Slatter,  26  Ala.  551.    §  112. 
Owens  V.  Withee,  8  Tex.  166.    §  489. 
Owmgs  V.  Hull,  9  Pet   624.     §§  22, 

185,  293. 
Oxford   Poor    Rate,  8  E.  &  B.  184. 

§295. 
Oxley  V.  Bridge,  1  Doug.  67.    §  112. 

Pacific  Mail  Steamship  Co.  v.  Joliffe, 

2  Wall  450.     §§  11,  164. 
Pacific  R.  R  Co.  v.  Cass  Covmty,  53 

Mo.  17.    §  157. 
Pacrfic  Railroad  v.  Governor,  28  Mo. 

353.     §§  81,  51,  63,  294. 
Pacific,    etc.   Tel.    Co.   v.   Common- 
wealth, 66  Pa  St  70.     §  167. 
Pacific,  Town  of,  v.  Seifert,  79  Mo. 

210.     §  40. 
Pack  V.  Barton,  47  Mich.  520.    §§  26, 

46. 
Packard  v.  Richardson,  17  Mass.  143, 

§§  307,  310. 


Packer  v.   Noble,   103    Pa.   St    ISa 
§246. 
V.  Sunbury,  etc.  R,  R.  Co.  19  Pa. 
St  211.     §  220. 
Packet  Co.  v.  Keokuk,  95  U,  S.  80. 

§§  170,  171. 
Paddock    v.   Cameron,   8  Cow.   212. 

§322. 
Padelford  v.  Mayor,  etc.  14  Ga,  488. 

§  197. 
Paducah  &  M.  R.  R.  Co.  v.  StovaU,  12 

Heisk.  1.     §  124. 
Page  V.  Allen,  58  Pa,  St  338,     §  328, 
Paget  V,  Curtis,  15  La.  Ann,  451,    §  184. 
Paine  v.  Insurance  Co.  11  R  I,  411, 
§294, 
V.  Spratley,  5  Kan.  525,     §§  880, 
390. 
Palmer,    Matter    of,    40  N,   Y,   561. 

§164, 
Palmer  v,   Aldridge,   16  Barb.    131. 
§  296. 
v,  Conly,  4  Denio.  374 ;  2  N,  Y, 

182,     §g  166,  482, 
V.  Cross,  1  Sm.  &  M.  48.     §  464. 
v.  Hicks,  6  John.  138,     §  386. 
V.  Lacock,  107  Pa.  St  846,    §  342, 
v.  Palmer,  86  Mich,  487,     §  368, 
V.  State,  7  Cold,  82,    §  247, 
V.  York  Bank,  18  Me.  166.  §§  208, 
358. 
Palms  V.  Shawano  Co.  61  Wis,  211. 

§§  284,  260, 
Pana  v.  Bowler,  107  U.  S,  529,    §  154. 
Panaud  v.  Jones,  1  CaL  488,     §  814. 
Pancoast  v,  Addison,  1  H,  &  J.  850, 
§  424,  • 
v,  Ruflfin,  1  Ohio,  177,     §  410, 
Pangborn  v.  Westlake,  86  Iowa,  546. 
§  336. 
V.  Young,  32  N.  J.  L,  29,    §§  85, 
188,  294 
Panter    v,   Att'y-General,  6    Brown, 

P.  C,  486,     §§  105,  107, 
Papin  V,  Ryan,  32  Mo.  21,    §  181, 
Parker  v.   Bogardus,    5    N,   Y.   309. 
§  464. 
V.  Commonwealth,  6  Pa.  St  507. 
§§  67,  75, 180. 


CASES   CITED. 


Ixxxiii 


Parker  v.   Fassit,   1   Har.  &  J.   337. 
§424. 
V.  Great  W.  R'y  Co.  7  M.  &  Gr. 

253.     §  878. 
V.  Hubbard,  64  Ala  203.    §  138. 
V.  Pomeroy,  2  Wis.  112.     §  320. 
V.  Taswell,  2  De    G.   &   J.  559. 
§256. 
Parkinson  v.  Brandenburg,  35  Minn. 
294.     §  110. 
V.  State,  14  Md.  184.     §§  78,  82, 
88,  92,  104,  107,  215,  239,  247, 
254. 
Parmelee  v.  Lawrence,  48  HL  331. 

§164. 
Parramore  v.  Taylor,  11  Gratt  220. 

§256. 
Paxrott   V.    Stevens,    37    Conn,    93. 

§141. 
Parsons  v.  Bedford,  3  Pet  433.    §  254. 
V.  Chamberlin,    4    Wend-     512. 

§253. 
V.  Circuit  Judge,  37  Mich.  287. 

§234 
T.  McCracken,  9  Leigh,  495.  §  426. 
V.  McGavock,  2  Tenn.   Ch.  581. 

§428. 
v.  Paine,  26  Ark.  124    §  206. 
V.  Thompson,  1  H.  BL  322.  §  429. 
V.  Tuolumne  Co.  W.  Co.  5  Cal 
43.    §  397. 
Partington,  Ex  parte,  6  Q.  B.  653. 

§§  223,  267. 
PaitLugton  v.  Attorney-General,  L.  R 

4  H.  L.  122.     §§  348,  362. 
Parton  v.  Hervey,  1  Gray,  119.   §  336. 
Parti'idge  v.   Badger,  25  Barb.  146. 
§385. 
V.  Dorsey,  3  Har.  &  J.  307.   §  194 
V.  Lis.  Co.  15  WaU.  573.    §  185. 
V.  Naylor,  Cro.  Eliz.  480.    §  353. 
V.  Sti-ange,  1  Plow.  79.     §  105. 
Patchin  v.  Brooklyn,   2  Wend.  377. 

§343. 
Patei*son  v.  McCaiisland,  3  Bland's 

Ch.71.     §305. 
Paterson,  City  of,  v.  Society,  24  N.  J. 

L.  385.    §  75. 
Pattee  v.  Greely,  13  Met  284.    §  336. 
f 


Patten  v.  Rhymer,  3  R  &  R  1.  §  324 

V.  Smitli,  4  Conn.  450.     §  422. 
Patterson    v.  Brindle,    9  Watta,    9a 
§420. 
V.  CaldweU,    1    Met    (Ky.)   489. 

'    §137. 
V.  Tatum,  3  Sawyer,  164    §§  166i, 

327. 
V.  Wmn,  5  Pet  233.     §  15. 
Pattison  v.  Bankes,  2  Cowper,  543. 

§213. 
Paul,  In  re,  94  N.  Y.  497.    §§  87,  98, 

170. 
Paul  V.  Stone,  112  Mass.  27.    §  114 
Pausch    V.    Guerraid,    07    Ga.    319. 

§159. 
Pauska  v.  Daus,  31  Tex.  67.    §  184 
Pawlet  V.  Clark,  9  Cr.  292.     §  472. 
Payne  v.  Conner,  3  Bibb,  180.    §  137. 
V.  Treadweli,  16  CaL  220.   §§  395, 
298. 
Peables  v.  Hannaford,   18  Me.  106. 

§112. 
Peabody  v.  School   Com.  115  Mass. 

383.    §384 
Peachee  v.  State,  63  Lid.  399.    §  88. 
Peacock  v.  Banks,  Minor  (Ala.),  387. 
§184 
V.  Regma,  93    Eng.    C.  L.    264 
§115. 
Peake  v.  Yeldell,  17  Ala.  636.    §  191. 
Pearce    v.    Atwood,    13    Mass.    324 
§  288. 
V.  Bank  of  Mobile,  33  Ala.  693. 

§§  221,  223. 
V.  Langfit  101  Pa.  St  507.    §  306. 
Pearl  v.   Conley,   7  Sm.   &  M.   358. 

§367. 
Pearpont  v.  Grahpju,  4  Wash.  C.  C. 

232.    §111. 
Pearson  v.  DarrLngton,  32  Ala.  227. 
§  320. 
V.  Flannagan.  52  Tex.  266.    §  452. 
V.  International      Distillery,     73 

Iowa,  348.     §  137. 
V.  Lovejoy,  53  Barb.  407.    §§  207, 
440. 
Pease    v.    Howard,    14    Jolin.     479. 
§369. 


Lsxxiv 


CASES    CITED. 


Pease  v.  Peck,  18  How.  595.   g§  40, 310, 

312. 
Peate  v.  Dicken,  1  C.  K  &  R.  423. 

§270. 
Peck  V.  Pease,  5  McLean,  486.    §  191. 
V.   WeddeU,    17    Ohio    St    271. 
§260. 
Pecquet  v.  Pecquet,  17  La.  Ann.  204. 

§295. 
Peet  V.  Nalle,  30  La,  Ann.  Pt  II,  949. 

§220. 
Peik  V.  Chicago,  etc.  R  R.  Co.  94  U.  S. 

164.     §  185. 
Pelham  v.  Messenger,  16  La.  Ann.  99. 
§367. 
V.  Woolsey,    16    Fed.  Rep.  418. 
§92. 
Pell   V.    Newark,  40    N.  J.  L.    550. 
§127. 
V.  Ulmar,  18  N.  Y.  139.     §  398. 
PeUen  v.  Inhab.  of  Wonsf  ord,  9  Bam. 

&  Cr.  134.    §  112. 
Pemble  v.   Clifford,  2  McCord,    31. 

§184 

Penberthy  v.  Lee,  51  Wis.  261.    §  452. 

Pendleton  v.   Bank  of  Kentucky,  2 

J.  J.  Marsh.  148.     §  401. 

V.  Perkins,  49  Mo.  565.     §  428. 

Penn  v.  Baltimore,   1  Ves.  Sr.   454 

§194 
Penn.  Co.  v.  Frana,  13  IlL  App.  91. 

§306. 
Penniman  v.  Cole,  8  Met.  496.    §  115. 
Pennington  v.   Coxe,   2  Cranch,  33. 
§215. 
V.  Gibson,   16  How.   80.     §§  22, 

185,  293. 

V.  Townsend,  7  Wend.  276.    §  336. 

V.  Woolfolk,  79  Ky.  13.     §§  80, 

101,  103. 

Pennock  v.  Dialogue,  3  Pet.  18.    §  333. 

Pennsylvania  Hall,  In  re,  5  Pa.  St 

304    §165. 
Penn.  R.  R.  v.  Butler,  57  Pa.  St  335. 

§371. 
Pennsylvania  R  R  Co.  v.  Canal  Com- 
missioners,   21    Pa    St    33. 
§§  164,  383. 
V.  Keller,  67  Pa.  St  300.    §  371. 


Penny  wit  V.  Foote,  37  Ohio  St  600. 

§20. 
Penobscot  R.  R.  v.  Bartlett,  12  Gray, 

244.     §§  191,  192. 
Penrose  v.  Martyr,  E.  B.  &  E.  499. 

§444. 
Pensacola  v.  Louisville,  etc.  R  R  Ca 

21  Fla.  492.     §  390. 
V.  Reese,  20  Fla.  437.     §  456. 
Pensacola  Telegraph  Co.  v.W.  U.  TeL 

Co.  96  U.  S.  1.     §  383. 
People  V.  Adirondack  Co.  57  Barb. 

656.     §  456. 
V.  AUen,  1  Lans.  248.    §  198. 
V.  Allen,  6  Wend.  486.    §§  139, 

203,  448. 
V.  AUen,  42  N.  Y.  404     §  90. 
V.  Arensberg,  105  N.  Y.  123.   §  96. 
V.  Banks,  67  N.  Y.  568.    §§  92, 

135. 
V.  BerbeiTich,  11  How.  Pr.  333. 

§222. 
V.  Bigler,  5  Cal.  23.    §  330. 
V.  Board    of    State    Auditors,    9 

Mich.  327.     §  473. 
V.  Bond,  10  CaL  563.     §  475. 
V.  Bowen,  21  N.  Y.  520.     §§  55, 

117. 
V.  Bowen,  30  Barb.  24     §  117. 
V.  Briggs,  50  N.  Y.  558.     §§  46, 

86,  88,  94  101,  103,  170.  237, 

331,  341. 
V.  BrisUn,    80    HL   423.     §§    88, 

93,  96. 
V.  Brooklyn,  69  N.  Y.  605.    §154 
V.  Bull,  46  N.  Y.  68.    §  331. 
V.  Bums,  5  Mich.  114    §§  73,  75, 

215,  240,  324 
V.  Burt  43  Cal.  560.    §§  30,  138, 

140,  204 
V.  Bussell,  59  Mich.  104    §  143. 
V.  Butler,  3  Cow.  347.    §  468. 
V.  Butler,  16  John.  203.     §  200. 
V.  Butte,  4  Mont  174    §§  72,  75. 
V.  C.  P.  R  R  Co.  43  CaL  432. 

§121. 
V.  Calder,  30  Mch.  87.    §  190. 
V.  Canal  Com'rs,  3    Scam.    153. 

§407. 


OASES    CITED. 


Lx.xxv 


People  V.  Carr,  36  Ilun,  488.    §  154 
V.  Chapin,  105  N.  Y.  309.    §  343. 
V.  Chee  Kee,  Gl  Cal.  404.    §  302. 
V.  Chew,  6  CaL  G;3G.    g  342. 
V.  Cicott,  16  ]\liclL  283.     g  314. 
V.  Clark,  1  Cal.  406.     gg  104,  110. 
V.  Clute,  50  N.  Y.  451.     §  260. 
V.  Collins,  3  Mich.  343.     ^§  67,  73. 
V.  Commissioners,     3    Hill,    601. 

g§  218,  239,  341. 
V.  Commissioners,  54  N.  Y.  276. 

§§  36,  40,  51. 
V.  Commissioners,   59  N.  Y.   92. 

§473. 
V.  Commissionei"s,  47  N.  Y.  501. 

§93. 
V.  Comm'rs    of     Highways,    53 

Barb.  70.     §  90. 
V.  Common  Council,  13  Abb.  Pr. 

(N.  S.)  121.     §  102. 
V.  Common  Council  of  Brooklyn, 

22  Barb.  404.     i;  454. 
V.  Comstock,  78  N.  Y.  356.   §  331. 
V.  Cook,   14  Barb.  259.    §§  448, 

451,  455. 
V.Cooper,   83  IlL   585.     §§   170, 

176,  180. 
V.  Cooper,  6  HiU,   516.    §§  124, 

339. 
V.  Croton  Aqueduct   Board,    26 

Barb.  248.     §  440. 
V.  DanieU,  50  N.  Y.  271.    §  395. 
V.  Davenport,     91     N.    Y.    574. 

§§  210,  211,  246. 
V.  Davis,  61  Barb.  456.    §§  120, 

168,  198. 
V.  Dayton,  55  N.  Y.  377.    §  309. 
V.  Denahy,  20  Mich.  349.     §§  78, 

82,  98. 
V.  Doming,  1  Hilt.  271.  §g  138, 256. 
V.  Devlin,  33  N.  Y.  269.    §§  36, 54. 
V.  De  Wolf,  62  IlL  253.    §§  41,  45, 

52,  181,  294. 
V.  Doe,  1  Mich.  451.    §  449. 
V.  Draper,  15  N.  Y.  532.     §§  330, 

395. 
V.  Eddy,  57  Barb.  593.  §g  341,  343. 
V.  Fleming,  7  Colo.  230.  §§  78,  80, 

101,  103,  135,  137. 


People  V.  Frisbie,  26  Cal.  135.     §  20G. 
v.  Gadway,  61  Mich.  285.     §  102. 
V.  Gardner,  59  Barb.  198.     §  464. 
V.  Gates,  57  Barb.  291.     §  456. 
V.  Gill,  7  Cal.  356.     gg"    107,  225, 

227. 
V.  Goddard,  8  Colo.  432.    §§  93, 

95. 
V.  Green,  58  N.  Y.  295.    §§  464, 

473. 
V.  Grippen,  20  Cal.  677.     §  138. 
V.  Hadden,  3  Denio,  220.     §  400. 
V.  Hall,  8  Colo.  485.     §§  103,  169, 

170. 
V.  Harper,  91  IIL  357.     §  198. 
V.  Hatch,  33  IlL  9.     §§  26,  59. 
V.  Henshaw,  76  CaL  436.     §  121. 
V.  Hicks,  15  Barb.  160.     ^  341. 
V.  HilL  3  Utah,  334     ^§  258,  260. 
V.  HU],  8  N.  Y.  449.     §  120. 
V.  HiU.s,  35  N.  Y.  499.     gg  SO,  101, 

198. 
V.  HiUsdale,  etc.  T.  Co.  2  John. 

190.     g  456. 
V.  Hobson,  48  ^Hch.  27.     §§  143, 

166. 
V.  Hoffman,  97  IlL  234.     §  260. 
V.  Hoffman,  116  ILL  587.    §  72. 
V.  HoUey,  12  Wend.  481.    §  448. 
V.  Hoym,  20  How.  Pr.  76.     §  407. 
V.  Hulse,  3    Hill,    309.    §§    207, 

254,  357,  400,  438. 
V.  Hui-st,  41  Mich.  328.     §  94 
V.  Ins.  Co.  19  Mich.  392.  §§  82,  92. 
V.  Inst  of  Prot  Deaconesses,  71 

IIL  229.    §  78. 
V.  Irvin,  21  Wend.  128.     §  256. 
V.  Jackson,  etc.  Plank  Road  Co. 

9  Midi.  285.     g§  473,  474 
V.  Jobs,  7  Colo.  475.    §  169. 
v.  Kenney,  96  N.  Y.  294     §g  169, 

170. 
V.  King,  28  Cal.  265.     §  260. 
V.  Kinsman,  51  CaL  92.     §  206. 
V.  Knight,  13  Mich.  424.     §  405. 
V.  Lake  Co.  33  CaL  487.    §  449. 
V.  Lambert,  5  Mich.  349.     gg  190, 

192. 
V.  Lambier,  5  Denio,  9.     g  386. 


Ixxxvi 


CASES   CITED. 


People  V.  Lawrence,  41   N.  Y.  137. 

§§  88,  97. 
V.  Lawrence,  36  Barb.  185.     §§  60, 

66,  80,  88,  213,  345,  407. 
V.  Livingston,  6  Wend.  526.  §  163. 
V.  Lcewenthal,  93  ILL  191.     §§  45, 

46,  96,  307,  311. 
V.  Luby,  56  Mich.  551.    §  170. 
V.  Lyman,  2  Utah,  30.    §§  299, 

300. 
V.  Lyttle,  1  Idaho,  143.    §  136. 
V.  McCain,  51  Cal.  360.    §  206. 
V.  McCaUum,  1  Neb.  182.    §§  88, 

132. 
V.  McCann,  16  N.  Y.  58.    §§  103, 

120. 
V,  McClave,  99  N.  Y.  83.     §  324 
V.  McClellan,  31  CaL  101.     §  342. 
V.  McDonald,  69  N.  Y.  362.  §483. 
V.  McEh-oy,    72    Mich.    446;    40 

N.  W.  Rep.  750.     §§  91,  330. 
V.  Mahaney,  13  Mich.  481.    §§  41, 

43,  48,  78,  82,  88, 131, 135, 181, 

294. 
V.  Manhattan  Co.  9  Wend.  351. 

§473. 
V.  Marx,  99  N.  Y.  377.    §  370. 
V.  May,  3  Mich.  598.    §§  254,  807, 

309. 
V.  Mayor,  etc.  of  N.  Y.  32  Barb. 

102.    §  140. 
T.  Meighan,  1  HiU,  298.    §  453. 
V.  Metzker,  47  CaL  524    §  384 
V.  Miner,  47  HL  33.    §  159. 
V.  IVIitcheU,  4  Sandf.  466.    §  453. 
V.  Mitchell,  35  N.  Y.  551.    §§  483, 

484 
V.  Molyneux,  40  N.  Y.  113.  §§  211, 

284. 
V.  Morris,  13  Wend?  325.     §  239. 
Y.  N.  Y.  etc.  R  R  Co.  84  N.  Y. 

565.    §274 
V.  O'Brien,  38  N.  Y.  193.    §§  95, 

198. 
V.  O'Brien,  111  N.  Y.  1.    §  210. 
V.  O'Neil,  51  CaL  91.    §  206. 
V.  Palmer,  52  N.  Y.  83.    §§  138, 

157. 
T.  Pahner,  109  N.  Y.  110.    §  139. 


People  V.  Parks,  58  CaL  635.    §§  80,  92, 

103. 
V.  Peacock,  98  IlL  172.    §§  206, 

350,  482. 
V.  Peck,  11  W^end.  604    §  450. 
V.  Peralta,  3  CaL  379.    §  397. 
V.  Pico,  62  Cal.  50.     §  402. 
V.  Piatt,   17  John.  195.     §§   206, 

472. 
V.  Pond,  67  Mcli.  98.    §  94 
T.  Porter,  90  N.  Y.  68.    §§  169, 

173,  174 
V.  Power,  25  111.  187.    §  473. 
V.  Pui-dy,  2  Hill,  31.    §§  36,  66. 

294 
V.  Quigg,  59  N.  Y.  83.    §  157. 
V.  Recorder,  6  HiU,  492.    §  207. 
V.  Reynolds,   5  Gilm.   1.     §§  72, 

75. 
V.  Richards,     108     N.     Y.     137. 

§274 
V.  River  Raisin,  etc.  R  R  Co.  13 

Mich.  389.    §§  294,  380. 
V.  Rochester,  5  Lans.  11.    §  449. 
V.  Salomon,  51  IlL  37.    §§  72,  75, 

107. 
V.  San  Francisco,  etc.  R.  R  Co.  28 

CaL  254     §  138. 
V.  San  Francisco,  etc.  R  R  Co.  35 

Cal.  606.    §  331. 
V.  Schemerhorn,    19  Barb.    540. 

§§  454  455. 
V.  Schoonmaker,    63    Barb.    44 

§§  234  237,  238. 
V.  Shepard,  36  N.  Y.  285.    §  330. 
V.  Sheriff  of  Broome,  19  Wend- 

87.     §  114 
V.  Sloan,  2  Utah,  326.    §  167. 
V.  Starne,  35  IlL  121.    §  48. 
V.  Stevens,  13  Wend.  341.    §  239. 
V.  Stout,  23  Barb.  349.    §  67. 
V.  Supervisors,  8  N.  Y.  317.  §§35, 

54 
v.  Supervisors,  16  N.  Y.  425.  §§  10, 

200,  201,  206,  229. 
V.  Supervisors,    34    N.    Y.    26a 

§452. 
V.  Supervisors,  43  N.  Y.  10.  §§  102, 

103,  194  198. 


CASES    CITED, 


Ixxxvii 


People  V.  Supervisors,  67  N.  Y.  109, 

§§  133,  137,  152,  168. 
T.  Supervisors,  3  Barb.  332.    §  11. 
V.  Supervisors,  56  Barb.  542.  §462. 
V.  Supervisors,  G3  Barb.  83.   §  482. 
V.  Supoi-visors,  6  Hun,  304.  §g  207, 

390. 
V.  Supervisors,  40  Hun,  353.  §  157. 
V.  Supervisors,  13  Abb.  New  Cas. 

421.     §237. 
T,  Supervisor,  14  Mich.  336.  §  420. 
V.  Supervisors,  16  IMicli.  254,  §  91, 
V.  Supervisors,  20  Mich,  95.  §  483. 
V.  Sweetser,  1  Dak.  295.    §§  252, 

260. 
V.  Thompson,  67  CaL  627.    §  451. 
V.  Tibbets,  4  Cow.  384.    §§  434, 

482. 
T.  Tiphaine,    3    Park,    Cr,    241. 

§137. 
v.Tisdale,57CaL104    §§142,143. 
V.  Trustees,  26  Hun,  488.    §  168. 
V.  Tyler,  36  CaL  522.     §  168. 
V.  Tyler,  7  Mich.  161.     §  213. 
V.  Utica  Ins.   Co.   15  John.  381. 

§§  241,  254,  380,  436, 
V.  Walker,  17  N.  Y.  502.    §  112. 
V.  Wallace,  70  III  680.    §§  49, 122, 

127. 
T.  Weston,  3  Neb.  312,    §§  283, 

284. 
V.  Whipple,  47  CaL  592.    §  49. 
V.  Whitney's  Pomt,  102  N.  Y.  81. 

§391. 
V.  WilUanis,  64  CaL  87.    §  298, 
T.  Willsea,  60  N,  Y.  507.    §  101. 
V.  Wintermute,  1  Dak.  63.     §  168. 
V.  Wood,  71  N,  Y,  371.     §  211. 
V.  Woods,  7  Cal.  579.     §  475. 
V.  Wriglit,  70  111.   388.     §§  124, 

135,  193,  198. 
Peoria,  etc.  R.  K,  Co.  v.  Duggan,  109 

HI.  537.     §  125. 
Pepperell  v.  Bua-rell,  3  DowL  P.  C. 

674.    §112. 
Perchard  v.  Heywood,  8  T.  R  472. 

§194. 
Perdicaris  v.  Bridge  Co.  29  N.  J.  L. 
367.    §194. 


Perkins    v.   Perkins,  62    Baib.  631. 

g§  283,  290. 

V.  SeweU,  1  W.  Black.  659.  §  30a 

V.  Thomburgli,  10  CaL  189.  §§  204» 

327. 

Perrine  v.  Chesapeake,  etc.  Canal  Ca 

9  How.  172.    §  381. 
Periy  v.  Commonwealth,  3  Gratt  632. 
§206. 
V.  Gross,  25  Neb.  826.     §  101. 
V.  Mitchell,  5  Demo,  537.    §  342. 
V.  New  Orleans  R  R  Co.  55  Ala. 

413.    §194. 
V.  Newsom,  1  Ired.  Eq.  28.  §§  194, 

199,  213, 
V.  State,  87  Ala  30.    §  469. 
Perry  County  v.  Jefferson  Co.  94  M. 
214.     §  332. 
V.  Railroad  Co.  58  Ala.  546.  §§  29, 
41,  43,  46. 
Ferryman   v.    Greer,    39    Ala.    133. 

§400. 
Peters  v.  Bain,  133  U.  S.  670.    §  185. 
V.  Condron,  2  S.  &  R  80.     §  432. 
Petersburg  v.  Metzker,   21   EL   205. 

§380. 
Petrie  v.  Columbia,  etc.  R  R  Co.  35 
Am.  &  Eng.  R  R  Cas.  430;  29 
S.  C.  303.     §  371. 
Pettit  V.  Fretz,  33  Pa.  St  118.    §  40a 
Petty,  In  re,  22  Kan.  477.     §  470. 
Peugnet,  Matter   of,  67  N.  Y.  444 

§133. 
Peyton  v.  Moseley,  3  T.  B.  Mon.  77. 
§§  139,  153. 
V.  Smith,  4  McCord,  476.     §  10. 
Phelan   v.  Johnson,    7    Ir.    L.    535. 

§333. 
Phelps  V.  Hawley,  52  N.  Y.  23.    §  462. 
v.  Rightor,  9  Rob.  (La.)  531.  §  283. 
V.  Rooney,  9  Wis.  70.     §  475. 
V.  Wood,  9  Yt  399.    §  425. 
Philadelphia  v.  Ridge  Ava  R'y  Ca 

102  Pa  St  190.     §  332. 
Philadelphia    Bank    v.    Lambeth,  4 

Rob.  403.     §  184, 
Philadelpliia  &  Erie  R  R  Co,  v,  Ca- 
tawis^a  R  R  Co.  53  Pa  St  20. 
§§  229,  231,  307,  402. 


lixxviii 


CASES    CITED. 


Philadelphia,  etc.  R  R.  Co.  v.  Leh- 
man, 56  Md  209.    §  302. 
Phillips  V.  Ash,  63  Ala.  414    §§  140, 
399. 
T.  Commonwealth,  44  Pa.  St.  197. 

§333. 
V.  Covington,    etc.    Co.    2    Met 

(Ky.)231.    §§80,85,93. 
V.  Evans,  1  Cr.  &  M.  450.    §  448. 
V.  Hopwood,  10  B.  &  C.  39.  §§  162, 

165. 
V.  Hunter,  2  H.  Black.  402.    §  13. 
V.  Mayor,  1  HUt.  483.    §§  97,  120, 

170. 
V.  Missouri  Pac.  R.  R.  Co.  86  Mo. 

540.     §  125. 
V.  PhilUps,  L.  R.  1  P.  &  D.  173. 

§430. 
V.  Poland,  L.  R.  1  C.  P.  204.  §271. 
V.  Pope's  Heii-s,  10  B.  Mon.  172. 

§  234. 
V.  Schumacher,     10    Hun,     405. 

§129. 
V.  State,  15  Ga.  518.    §  246. 
Philpott  V.  St.  George's  Hospital,  6 

H.  of  L.  Cas.  338.    §§  247,  254. 
Pickering  v.  Fisk,  6  Vt.  107.     §  12. 
Pickett  V.  Pipkm,  64  Ala.  520.    §  194. 
Pierce  V.  Delamater,  1  N.  Y.  17.  §138. 
V.  Kimball,  9  Me.  59.   §§  169,  193, 
198. 
Pierpont  v.  Crouch,  10  CaL  315.   §§  30, 

140. 
Piggott  v.  Rush,  4  Ad.   &  El.   912. 

§§  424,  426. 
Pike's  Estate,  45  Wis.  391.    §  256. 
Pike  V.  Hoard,  Eden,  184.     §  237. 

V.  Megoum,  44  Mo.  491.     §  229. 
Pilkington  v.  Cooke,  16  M.  &  W.  615. 

§159. 
Pillon  V.  Bushnell,  5  Barb.  156.   §  234. 
Piim  V.  Nicholson,  6  Ohio  St.   178. 

§§  50,  80. 
Pinckney  v.  Burrage,  31  N.  J.  L.  21. 

§426. 
Pingree  v.  Snell,  42  Me.  53.    §§  154, 

255. 
Pinkerton  v.  Easton,  K  R.  16  Eq.  492. 
^431. 


Pinkham  v.   Dorothy,   55    Me.    135. 

§366. 
Pioche  V.  Paul,  22  CaL  110.    §  314 
Pioneer,  The,  Deady,  72.    §  335. 
Piscataqua  Bridge  Co.  v.  New  Hamp- 

sliire    Bridge    Co.   7    N.  H.  35. 

§§  169,  378, 
Pitman  v.  Bump,  5  Ore.  17.    §§  10, 
464 

V.  Commonwealth,  2  Rob.  (Va.) 
813.     §§  142,  143,  166. 

V.  FUnt,  10  Pick.  504    §  333. 
Pitte  V.  Shipley,  46  Cal.  154    §§  246, 

255. 
Pittsbm-g's   Appeal,   115    Pa.    St  4 

§380. 
Pittsburg  v.  Walter,  69  Pa.  St  365. 

§  456. 
Pittsburg,  etc.  R.  R  Co.  v.  S.  W.  Pa. 
R'y  Co.  77  Pa.  St  173.   §  324 

V.  yming's  Adm'r,  27  Ind.  513. 
§371. 
Planche  v.   Fletcher,   1    Doug.   251. 

§13. 
Plantation  No.  9  v.  Bean,  36  Me.  359. 

§165. 
Planters'  Bank  v.  Sharp,  6  How.  391. 
§§  473,  474 

V.  State,  6  Sm.  &  M.  628.    §§  138, 
202. 
Piatt  V.  Lock,  1  Plowd.  35.    §  413. 

V.  Stewart,  10  Mich.  260.    §  391. 
Plowman,  Ex   parte,    53   Ala.    440. 

§443. 
Plumb  V.  Sawyer,  21  Conn.  351.  §206. 
Plummer  v.  People,  74  Bl.  361.   §§  91, 
210. 

V.  Plummer,  37  Miss.  185.   §§  307, 
310,  311. 
Plumstead  Board  of  Works  v.  Spack- 

man,  L.  R   13  Q.   B.   Div.   878. 

§§  218,  322. 
Pochin  v.  Duncombe,  1  H.  &  N.  856. 

§  308. 
Poe  V.  State,  85  Tenn.  495.    §  255. 
Poindexter  v.  Barker,  2  Hayw.  173. 

§190. 
Polk's  Lessee  v.  Wendall,  9  Cr.  98. 

§§  187,  191. 


OASES   CITED. 


Iyyyit 


Pollard,  Ex  parte,  40  Ala.  99.    §§  85, 

135,  206,  476. 
PoUard  v.   Wegener,    13  Wis.    569. 

§394 
Pomeroy  v.  Ainsworth,  22  Barb.  118. 

§184 
Pomf  ret  v.  Windsor,  2  Ves.  480.  §  194 
Pond  V.  Maddox,  38  CaL  572.    §  132. 

V.  Negus,  3  Mass.  230.     g§  448, 
449,  450. 
Pons  V.  State,  49  Miss.  1.    §  143. 
Poock  V.  Lafaj'ette  Bdg.  Ass.  71  Ind. 

357.    §260. 
Pool  V.  Wedemeyer,   56   Tex.    287. 

§407. 
Poor  Dii-ectors  v.  R.  R  Co.  7  Watts 

&  S.  236.    §  168. 
Poor  District  v.  Poor  District,  109  Pa. 

St  579.     §  207. 
Pope  V.  Pliifer,  3  Heisk.  701.    §§  119, 

124 
Porter  v.  Cocke,  Peck,  30.    §  184 

V.  Waring,  69  N.  Y.  250.   §  306. 
Porterfield  v.  Clark,  2  How.  76.   §  187. 
Portland  v.  Stock,  2  Oregon,  69.  §  132. 
Portland  Bank  v.  Apthorp,  12  Mass. 
252.     §  307. 

V.  Maine    Bank,    11    Mass.  204 
§111. 
Portsmouth  Livery  Co.  v.  Watson,  10 

Mass.  91.     §  193. 
Port  Wardens  of  N.  Y.  v.  Cartwright, 

4  Sandf.  236.     §  370. 
Posey  V.  Pressley,  60  Ala.  243.  §§255, 

256. 
Post  V.  Garrow,  18  Neb.  682.   §  115. 

V.  Supei-visors,    105    U.  S.    667. 
§§  41,  48,  53,  181. 
Postmaster-General     v.    Early,     12 

Wlieat  148.    §  201. 
Potter  V.  National  Bank,  102  U.  S. 
163.     §  224 

V.  Safford,  50  ]\Iicb.  46.     §§  215, 
240. 
iPotwin  V.  Johnson,  108  EL  70.    §  72. 
Poulsun  T.  Thirst,  L.  R  2  C.  P.  449. 
§243. 

V.  Union  Nat  Bank,  40  N.  J.  K 
563.     §  138. 


Pound  V.  Plumstead,  L.  R  7  Q.  K 

183.     §  404 
PowdreU  v.  Jones,  2  Smale  &  G.  407. 

§246. 
Powell   V.    Brandon,    24   Miss.   363. 
§184 

V.  De  Blane,  23  Tex.  60.     §  191. 

V.  Jackson,  51  Mich.  129.    §  26. 

V.  State,  69  Ala.  10.    §g  169,  175. 

V.  l^ittle,  3  N.  Y.   396.    §g  207, 
302,  390. 
Power  V.  Penny,  59  Miss.  5.    §  483. 
Powers'  Appeal,  29  Mich.  504    §§112, 

114,  207. 
Powers   V.    Barney,  5    Blatch.   202. 
§§  160,  363. 

V.  Bergen,  6  N.  Y.  358.    §  194 

V.  Inferior  Ct  23  Ga.  65.    §  75. 

V.  Shepard,  48  N.  Y.  540.    §§  133, 
147. 
Powlter's  Case,  11  Coke,  33.    §  210. 
Prangley,  In  re,  4  Ad.  &  EL    784 

§112. 
Pratt  V.  Short,  79  N.  Y.  437.    §  336. 

V.  Street      Commissionei-s,      139 
Mass.  559.    §§  154  156. 
Prell    V.    McDonald,    7    Kan.    426. 

§§  189,  193. 
Prentiss   v.  Danaher,  20   Wis.    31 L 

§229. 
Presbrey  v.  WiUiams,  15  Mass.  193. 

§§  HI,  112,  114 
Prescott  V.  Beebe,  17  Kan.  320.    g  95. 
President,  etc.  of  L.  v.  Harrison,  9  R 

&  C.  524    §  166. 
Preston   v.  Louisville,  84   Ky.   lia 
§128. 

V.  Sui-goine,  Peck,  80.    §  184 
Pretty  v.  Solly,  26  Beav.  606.    §  217. 
Price  V.  Hopkin.  13  Mich.  318.    §  107. 

V.  Nesbitt,  29  Md.  263.    §  164 

V.  ^y\ute,  27  Mo.  275.   §§  193. 198. 

V.  Wliitman,  8  CaL  412.    §§  112, 
115. 
Prieger  v.  Exchange,  etc.  Ins.  Co.  6 

Wis.  89.    §  298. 
Prigg  V.  Pennsylvania,  16  Pet  53flL 

§§  197,  253. 
Prigge  V.  Adams,  Skin.  350.    §  19a 


xc 


CASES    CITED. 


Prince  v.  Lamb,  Breese,  378.    §  184. 
Pringle  v.  Carter,  1  HiU  (S.  C),  53. 

§395. 
Pritchett  v.  Stanislaus  Co.  73  Cal  310. 

§121. 
Pritz,  Ex  parte,  9  Iowa,  30.    §§  129, 

130. 
Probasco  Co.  v.  Moundsville,  11  Wa, 

V.  501.    §364 
Proprietors    of    Fryeburg   Canal  v. 

Frye,  5  Me.  38.    §  193. 
Proprietors  of  Locks,  etc.  v.  Lowell, 

7  Gray,  223. 
Prospect  Park,  etc.  R  R.  Co.,  In  re,  67 

N.  Y.  371     §  92. 
Protection  Life  v.  Palmer,  81  IlL  88. 

§  Ill- 
Protector,  The,  1  W.  Rob.  45.     §  364 
Protestant   Ep.   Pub.   School,  In  re 

Application    of,    58    Barb.    161. 

§§  206,  464 
Providence  v.  Union  R.  R  Co.  12  R  L 

473.     §  157. 
Providence  Bank  v.  Billings,  4  Pet 

514    §473. 
Providence  Co.  v.  Chase,  108  Pa.  St 

319.    §  454 
Providence,  etc.  R  R  Co.  v.  Norwich, 

etc.  R  R  138  Mass.  277.    §  389. 
Pryce  v.  Monmouthshire  Canal  &  Ry. 

Co.,  L.  R  4  App.  Cas.  842.    §  362. 
Pryor  v.  Rybum,  16  Ark.  671.    §§  368, 

426. 
PubUc  School  TiTOstees  v.  Trenton,  30 

N.  J.  Eq.  667.     §  138. 
Pue  V.  Stetzel,  16  Md.  539.    §  260. 
Pugh  V.  Duke  of  Leeds,  2  Cowp.  714 
§112. 

V.  State,  2  Head,  227.    §  298. 
Pullan  V.  Cincinnati,  etc.  R  R.  Co.  4 

Biss.  35.     §  381. 
Purdy  V.  People,  4  HiU,  384     §§  36, 

181,  182. 
Pursell  V.  New  York  Life  Ins.  Co.  42 

N.  Y.  Super.  Ct  383.    §§  155,  327. 
Putnam    v.    Longley,   11  Pick.  489. 

§§  322,  407. 
Pyle  V.  Maulding,  7  J.  J.  Iklarsh.  202. 

§§  111,  112. 


Quackenbush  v.  Danks,  1  Denio,  128, 

§§  206,  476. 
Quarrier   v.    Colston,    1    PhiL    147. 

§12. 
Quarterbaum   v.  State,    79   Ala.    1. 

§331. 
Queen  v.  Castro,  L.  R  9  Q.  B.  360. 
§247. 
V.  Champneys,  L.  R  6  C.  P.  384 

§157. 
v.  Justices,  etc.  8  Ad  &  EL  932. 

§112. 
V.  The   Justices,    7   Jurist,    396. 

§115. 
v.  Pearce,    L.    R    5    Q.  B.  386. 

§§  230,  231. 

V.  St  GUes,  3  E.  «&  E.  224    §  133. 

Quick  V.  MiUer,  103  Pa,  St  67.   §  400. 

V.  Whitewater  Township,  7  Ind. 

570.    §220. 

Quigley  v.  Gorham,  5  CaL  418.  §  247. 

Quilter  v.  Mapleson,  L.  R  9   Q.  B. 

Div.  672.     §  463. 
Qum  V.  O'Keeffe,  10  Irish  C.  L.  (N.  S.) 
393.    §§218,  219,  246,  260,  322, 
324 
Qmnlon  v.    Rogers,    12    Mich.    168. 

§175. 
Quinn  v.  FideUty  Ben.  Asso.  100  Pa. 
St  382.    §§207.437. 
V.  Lowell    Electric   L.  Co.    140 
Mass.  106.    §  267. 

Rader  v.  Township  of  Union,  39  N. 

J.  L.  509.    §§  103,  170,  180. 
Radnorshire     Co.    Road    Board    v. 

Evans,  3  B.  &  S.  400.     §268. 
Rafael  v.  Verelst  2  W.  Black.  105& 

§12. 
Raflferty  v.  Buckman,  46  Iowa,  195. 

§375. 
Ragio  V.  Sta,te,  86  Tenn.  272.    §§  103» 

119,  124 
Ragland  v.  The  Justices,  10  Ga.  65. 
§§  242.  411,  420. 

V.  Wynn,  37  Ala,  32.     §  298. 
Railroad  v.  Hurst  H  Heisk.  625.  §  20, 

V.  McKaskill,  94  N.  C.  746.  §398. 

V.  MurreU,  11  Heisk.  715.     §  463. 


CASES    CITED. 


XCl 


Railroad  Co.  v.  Bank  of  Ashland,  12 
Wall.  229.    §§  22,  185,  293. 

V.  BaiTon,  5  Wall  90.    §  371. 
Railroad  Cos.  v.  Schulte,   103  U.  S. 

118.    §171. 
Railroad  Tax  Cases,  13  Fed.  Rep.  722. 

§30. 
Railway  Co.  v.  Board  Public  Works, 
28  W.  Va.  264.    §  10. 

V.  Loftin,  98  U.  S.  559.     §  364. 
Ralston  v.  Lothain,  18  Ind.  303.   §  10. 
Ramagno  v.  Crook,  85  Ala.  226.  §  92. 
Ramchander  v.  Hammond,  2  John. 

200.    §367. 
Ramsden  v.  Gibbs,  1  B.  &  C.   319. 

§429. 
Ramsey  v.  Glenn,  33  Kan.  271.    §  14 
Rand  v.  Commonwealth,  9  Gratt  738. 
§468. 

V.  Rand,  4  N.  H.  267.    §  111. 
RandaU  v.  Pryor,  4  Ohio,  424.    §  342. 

V.  Van  Rensselaer,   1  John.   95. 

§13. 
Randolph    v.    Bayne,    44    CaL    866. 
§232. 

V.  State,  9  Tex.  521.    §§  208,  279, 
349. 
Rankin   v.    Pine,    4   Abb.    Pr.    309. 
§369. 

V.  Tenbrook,  6  Watts,  388.  §  364. 
Ranoul  v.  Griffie,  3  Md.  54    §  288. 
Rantz  V.  Barnes,    40    Ohio   St    43. 

§377. 
Rape  V.  Heaton,  9;  Wis.  328.    §§  184, 

297. 
Rathbone  v.  Bradford,  1  Ala.  (N.  S.) 

312.    §§  10,  104 
Ratzky   v.    People,    29   N.    Y.    124. 

§§  469,  470. 
Raudebaugh  v.  Shelley,  6  Ohio  St 

307.    §§  151,  202. 
Raverty  v.  Fridge,  3  McLean,  230. 

§483. 
Rawley  v.  Rawley,  1  Q.  B.  D.  466. 

§210. 
RawUngs   v.  Jennings,   13  Ves.  46. 

§276. 
Rawlins   v.  Vidvard,    84  Hun,  205. 

§374 


Pawls  V.  Kennedy.  23  Ala.  240.  §222. 
Rawson    v.    Parsons,    6    Mich.    401. 

§449. 
Raymond    v.    State,    54    Miss.    563. 

§386. 
Raynard  v.  Chase,  1  Burr.  2.     §  208. 
Raynliara  v.   Canton,  3    Pick.    293. 

§191. 
Read  v.  Edwards,  17  C.  R  (N.  S.)  245. 
§256. 

V.  Frankfort  Bank,  28  Me.  318. 
§§  10,  476. 

V.  Levy,  30  Tex.  738.     §  332. 

V.  Stewart,  129  Mass.  407.    §  358. 

V.  Storey,  6  H.  &  N.  423.    §  139. 
Reading  v.  Savage,  124  Pa.  St  32& 

§  1^8. 
Ready  v.  Chamberlain,  52  How.  Pr. 

123.    §115. 
Red  Rock  v.  Henrj^  106  U.  S.  596. 

§§  138,  154  157. 
Reed  v.  Clark,  3  McLean,  480.    §  40. 

V.  Davis,  8  I'ick.  514     §§  208, 
258. 

V.  Northfield,  13  Pick.  94  §§208, 
358,  360. 

V.  Omnibus  R.  R  Co.  33  Cal.  213L 
§174 

V.  Ownby,  44  Mo.  204    §  314 

V.  Rawson,  2  Litt  189.     §  206. 

V.  State,  12  Ind.  641.    §  88. 

V.  Thompson,  88  IlL  245.   §  875. 

V.  Toledo,  18  Ohio,  161.    §  365. 

V.  Wilson,  41  N.  J.  K  29.   §  295. 
Reel  V.  Overall,  89  Ala.  138.    §  400. 
Reeves  v.  White,  17  Q.  B.  995.    §  396. 
Regtna  v.  Adamson,  L.  R  1  Q.  B.  Div. 
201.     §  462. 

V.  Allen,  L.  R  1  C.  C.  367.    §  255. 

V.  Arnold,  5  B.  &  S.  322.  §  432. 

V.  Badcock,  6  Q.  B.  787.    §  257. 

V.  Barclay,  L.  R  8  Q.  B.  Drv.  806. 
§362. 

V.  Bennett    14    Cox    C.    C.    45. 
§  355. 

V.  Bishop,  5  Q.  B.  Div.  259.   §  855. 

V.  Bishop  of  Oxford,  L.  R  4  Q.  B. 
Div.  525.     §  462. 

V.  Boteler,  4  B.  &  S.  989.   §  462. 


xcu 


CASES    CITED. 


Regina  v.  Brown,  17  Q.  B.  833.    §  262. 
V.  Biillock,  L.  R.    1    C.  C.   117. 

§256. 
V.  Buttle,    L.    R    1    C.    C.    250. 

§256. 
V.  CambridgesMre  Justices,  7  Ad. 

&E.  491.    §403. 
V.  Chanti-ell,  L.  R  10  Q.  B.  587. 

§314 
V.  Cleworth,  4  B.  &  S.  927.   §  270. 
V.  Cohen,  8  Cox  C.  C.  41.     §  355. 
V.  CoUingwood,    12    Q.    B.   681. 

§418. 
V.  Cutbush,  L.   R  2  Q.  B.   879. 

§310. 
V.  Dean,  12  M.  &  W.  39.      §§  355, 

429. 
V.  Doubleday,  3  EL   &  EL  501. 

§281. 
V.  Edmundson,  28  L.  J.  M.  G  215 ; 

2  E.  &  E.  77.    §§  268,  281. 
V.  Fordham,  11  A.  &  EL  73.  §  139. 
V.  Fi-ost,  9  0.  &  R   129.    §§  256, 

307. 
V.  Gibbons,   12   Cox    C.    C.  237. 

§355. 
V.  Harden,  2  Ellis  &  B.  188.   §  145. 
V.  Harvey,  L.  R  1  C.  C.  R  284. 

§§  355,  429. 
V.  Houghton,   1  EL  &  BL    501. 

§213. 
V.  Hertford  College,  L.  R  3  Q.  B. 

Div.  707.     §  300. 
V.  Hoi-ton,    11    Cox    C.    C.    670. 

§355. 
V.  IngaU,  L.  R  2  Q.  B.  Div.  199. 

§448. 
V.  Ingham,  5  B.  &  S.  257.    §  256. 
V.  Inhabitants,  etc.  2  Q.   B.   84 

§138. 
V.  Ipswich  Union,  2  Q.  B.  Div. 

269.     §  206. 
V.  Justices,  7  Ad.  &  E.  480.  §§  230, 

231. 
V.  Kershaw,    6    E.    &   B.    1007. 

§404 
V.  Lichfield,  2  Q.  B.  693.     §  270. 
V.  Llangian,  4  B.  &  S.  249.  §§  145, 

261. 


Regina  v.  Mallow  Union,  12  Ir.  Ch. 

(N.  S.)  35.     §§  206,  210,  239, 

322,  328,  400. 
V.  Mayor,    etc.   7    E.   &    B.   9ia 

§448. 
V.  Mayor  of  Harwich,  8  Ad.  &  E. 

919.     §  462. 
V.  Mews,  6  Q.  B.  Div.  47 ;  L.  R  8 

App.  Cas.  339.     §  151. 
V.  Midland  R  Co.  4  E.  &  B.  958. 

§266. 
V.  Moore,  13  Cox  C.  C.  544  §  355. 
V.  Most,  L.  R  7  Q.  B.  Div.  251. 

§294 
V.  O'Brien,  15  L.  T.  (N.  S.)  419. 

§355. 
V.  Overseers  of  South  "Weald,  5 

B.  &  S.  391.     §  462. 
V.  Payne,  L.  R  1  C.  0.  27.    §  281. 
V.  Pearce,  L.  R  5  Q.  B.  Div.  389. 

§402. 
V.  Phillips,  K  R   1    Q.   B.   648. 

§261. 
V.  Pilkington,    2    E.    &    B.    546. 

§418. 
V.  Pratt,  4  E.  &  B.  860.    §§  255, 

256. 
v.  Price,  L.  R  6  Q.  B.  411.    §  256. 
v.  Prmce,  L.  R  2  C.  C.  R  154 

§355. 
V.  St  Luke's,  L.  R  7  Q.  B.  153. 

§441. 
v.  Scaife,  17  Q.  B.  238.    §  310. 
V.  Scale,  5  E.  &  B.  1.    §  327. 
V.  Shiles,  1  Q.  B.  519.     §  261. 
V.  Skeen,  BeU  C.  C.  134    §  416. 
V.  Sleep,  L.  &  C.  44     §g  355,  429. 
V.  Smith,  1  L.  &  C.  131.    §  227. 
V.  South  Weald,  5  B.  &  S.  391. 

§256. 
V.  Spratley.  6  E.  &  B.  363.   §§  246, 

275. 
V.  Stock,   3  Nev.   &  Peny,  420. 

§147. 
V.  Stock,  8  Ad.  &  E.  405.    §  357. 
V.  Sykes,  L.  R  1  Q.  B.  Div.  52. 

§  333. 
v.  Tithe  Commissioners,  14  Q.  B. 
459.    §461. 


OASES    CITED, 


XCIU 


Regina  v.  Tolson,  L.  R  23  Q.  B.  Div. 
168.  §  355. 
V.  Tonbridge  Overseers,  L.  R.  13 
Q.  B.  Div.  342.  §§  288,  324. 
V.  Turner,  i)  Cox  C.  C.  145.  g  355. 
V.  Vine,  L.  R.  10  Q.  B.  195.  §  206. 
V.  Wilcox,  7  Q.  B.  317.  §  210. 
V.  WUUams,    2    C.    &    K    1001. 

§462. 
V.  Willmett,  3    Cox    C.    C.    281. 

§355. 
V.  Wood,  L.  R.  4  Q.  B.  355.  §  254. 
v.Woodi-ow,    15  M.   &  W.  404. 

§355. 
V.  Wymondham,    2    Q.    B.    541. 

§418. 

V.  Youle,  6  H.  &  N.  753.    §  142. 

V.  Zulueta,  1  C.  &  K  215.    §  300. 

Rehoboth  v.  Hunt,  1  Pick.  224.  §  472. 

Reiche     v.    Smythe,    13  AVaU.    162. 

§§  218,  242,  266. 
Reid  V.  Morton,  119  lU.  118.    §  170. 
V.  State,  20  Ga.  681.    §  206. 
V.  Strider,  7  Gratt.  76.    §  10. 
Pels  V.  Graff,  51    Cal.  86.    §§  201, 

206. 
Reiser  v.  Tlie  Wm.  Tell  S.  F.  Asso. 

39  Pa.  St.  147.     §§  2,  6,  10,  201. 
Reithmiller  V.  People,  44  Midi.  280. 

§g  215,  235,  240,  407. 
Remmingtou  v.  State,  1  Oregon,  281. 

§353. 
Ramsen,  In  re  Petition  of,  59  Barb. 

317.    §464. 
Renfroe     v.    Colquitt,    74    Ga,    619. 

§§  349,  351,  359. 
Renick  v.  Boyd,  99  Pa.  St  555.  §  273. 
Renner  v.  Bennett,  21  Ohio  St  431. 

§221. 
Rensselaer,  etc.  R  R  Co.  v.  Davis,  43 

N.  Y.  137.     §  387. 

Ren  wick  v.  Morris,  3  Hill,  621.  §§  202, 

399. 

V.  Morris,  7  Hill,  575.     §  399. 

Renten  v.  Bauer,  3  Kan.  505.    §  168. 

Report  of  County  Auditors,  In  re,  1 

Woodw.  (Pa.)  270.    §  333. 
Respublica  v.  ]\Iesca,  1  Dall.  73.     §  17. 
v.  Sparhawk,  1  Dall.  357.    §  370. 


Restall  V.  London,  etc.  R'y  Co.,  T^  K.  3 

Ex.  141.    §  163. 
Rex  V,  Abbot,  2  Doug.  553.    §  396. 
V.  Adderley,  2  Doug.  462.     §  253. 
V,  Archbishop  of  Canterbury,  11 

Q.  B.  665.     §  247. 
V.  Banljury,  1  A.  &  E.  142.  §  237. 
V,  Banks,  1  Esp.  144     §  355. 
V.  Barhans,  8  B.  &  C.  99.    §  324. 
V.  Barlow,  2  Salk.   609.     §§  461, 

462. 
V.  Bond,  1  B.  &  Aid  392.     §  350. 
V.  Bristol  Dock  Co.  6  B.  &  C.  191. 

§282. 
V.  Buggs,  Skin.  428.    §§  193,  198. 
V.  Bullock,  1  Taunt  80.     §  244 
V.  Cator,  4  Burr.  2026.     §  142. 
V.  Charlesworth,  2  Lowndes,  IL 

&  P.  117.     §  262. 
V.  Coruforth,  2  Str.  1162.     §  249. 
V.  Cowell,    2    East's    P.   C.   617. 

§266. 
V.  Cuniberworth  Half,  5  Q.  B.  484 

§282. 
V.  Cunningham,      5    East,    478. 

§266. 
V.  Davis,  1  Leach,  271.    §§  143, 

166. 
V.  Denbyshire,  4  East  142.  §  448. 
v.  Dorsetshire,     15      East      200. 

§324 
V.  Downs,  3  T.  R  569.     §  143. 
V.  Elkius,  4  Bm-r,  2130.     §  115. 
V.  Great  Driffield  Inhabitants,  8 

B.  &  C.  690.     §  310. 
V.  Hand}-,  6  T.  R.  286.     §  349. 
V.  Havering  Alte  Bower,  5  B.  & 

Aid.  691.     §  461. 
V,  Heath,    2    East's    P.    C,    609, 

§  166. 
V,  Hoduett  1  T,  R  96.     §  234 
V.  Hogg.  1  T.  R  721.     §  308. 
V.  Hymen,  7  T.  R  536.     §  353. 
V.  Inhabitants,  1  T.  R  96.    §  240. 
V.  Inhabitants  of  Shipton,  8  B.  & 

C.  94    §  259. 
V.  Inhabitants  of  Stoke  Damarel, 

7  B.  &  C.  570.     §  282. 
V.  Jefferies,  1  Strange,  446.    §  40. 


XCIV 


CASES   CITED. 


Eex  V.  Justices,  4   Nev.   &    M.  378. 

§§  112,  113. 
V.  Justices  of  London,  3   Burr. 

1456.     §§165,225. 
V.  Justices  of  Middlesex,  2  B.  & 

Ad.  818.  §§  105,  136,  221. 
V.  Justices  of  Norfolk,  4  B.  &  Ad. 

238.    §462. 
V.  Leek  Wootton,   16  East,  122. 

§307. 
V.  Leicester,  9  D.  &  R.  772 ;  7  B. 

&  C.  12.    §§  139,  448. 
V.  Liverpool,  4  Burr.  2244.     §  365. 
V.  Loom,  1  Moo.  C.  C.  160.    §  266. 
V.  Luffe,  8  East,  193.    §§  305, 418. 
V.  McKenzie,  R.  &  R  C.  C.  429. 

§§  143,  166. 
V.  Manchester,  etc.  Water-Works 

Co.  1  B.  &  C.  630.  §  262. 
V.  Marks,  3  East,  160.  §  213. 
V.  Mayor  of  London,  9  B.  &  C.  27. 

§396. 
V.  Meshita,  6  Ad.  &  E.  153.    §  292. 
V.  l^Iidland  R'y  Co.,  L.  R.  10  Q.  B. 

389.    §219. 
V.  Middlesex,  1  Dow.  P.  C.  117. 

§138. 
V.Middlesex,  2    B.  &  Ad.  818. 

§160. 
T.  Morgan,  Str.  1066.    §  136. 
V.  Mortlake,  6  East,  397.  .  §  260. 
V.  Newark-upon-Trent,  3  B.  &  C. 

71.    §223. 
V.  Newcomb,  4  T.  R  368.    §§  139, 

203. 
V.  Northleach  &  W.  Road,  5  B. 

&  Ad.  978.     §§  140,  145,  147. 
V.  Palmer,    1    Leach  C.  C.   352. 

§282. 
V.  Peckliam,  Carth.  406.     §  253. 
V.  Poor  Law  Commissioner,  6  Ad. 


17. 


237,  238,  255, 


V. 


&  E. 

324 
Proprietors  Manchester  &  S. 

Water- Works,  1  B.  &  G 

§279. 
Ramsgate,     6    B.    &    C. 

§324. 
Robinson,  2  Burr.  803.     §  325 


630. 


12. 


Rex  V.  Rogers,  10  East,  573.    §  137. 
V.  Sadi,  1  Leach  C.  C.  468.    §  289. 
V.  St  George's  Hanover  Square, 
3  Camp.  222.     §  202. 
'    V.  St  Peter  &  St  Paul  in  B.  1 
Bott,  443.    §  212. 
V.  Sedgley,  2  B.  &  Ad.  65.    §  266. 
V.  Shrewsbury,  3  B.  &  Ad.  216. 

§279. 
V.  Simpson,  1  Str.  45.     §  290. 
V.  Sparrow,  2  Str.  1123.     §  448. 
V.  Sutton,  4  M.  &  S.  532.    §  213. 
V.  Swiney,  Alcock  &  Napier,  131. 

§136. 
V.  Trustees,  etc.  5  Ad.  &  E.  563. 

§  351. 
V.  WaUis,  5  T.  R  375.     §  270. 
V.  Waterford,  9  Q.  B.  635.    §  333. 
V.  Wells,  4  DowL  562.     §  137. 
V.  "WTiiteley,  3  H.  &  N.  143.  §  152. 
V.  Wilhams,     1    W.    Black.    93. 

§§  210,  410. 
V.  Worcestershire,  5  M.  &  S.  457. 

§204. 
V.  Wright,  1  Ad.  &  E.  437.  §  333. 
V.  Yorksliire,  1  Doug.  192.    §  324 
V.  Younger,  5  T.  R  452.    §  310. 
Reynolds  v.  Blue,  47  Ala.  711.    §  64 
V.  HoUand,  35  Ark.  56.     §§  219,. 

234  238,  246. 

V.  Orvis,  7  Cow.  269.    §§  327,  390. 

V.  Robinson,  64  N.  Y.  589.     §  400. 

V.  State,  1  Ga.  222.    §  206. 

Rhoades  v.  Delaney,  50  Ind.  253.  §  114. 

Rhoads  v.  Hoernerstown    Building, 

etc.  Asso.  82  Pa  St  180.    §  156. 

Rhodes  v.  Smethurst,  4  M.  &  W.  42.. 

§424 

V.  Weldey,  46  Ohio  St  234.  §  255. 

Ricard  v.  Smith,  37  Miss.  644    §  394. 

V.  WiUiams,  7  Wheat  59.     §  322. 

Rice's  Succession,  21  La.  Ann.  614 

§181. 
Rice  V.  Foster,  4  Harr.  479.    §§  67, 
75. 
V.  Kirkman,      3    Humph.     415. 

§394 
V.  Montgomery,  4  Biss.  75.  §  306. 
V.  Parkman,  16  Mass.  326.    §  194 


CASES    CITED. 


XCT 


Rice  V.  R.  R.  Co.  1  Black,  358.  §§  1G4, 
215,  240,   246,   289,  291,  378, 
379. 
V.  Ruddiman,  10  ]\Ilch.  125.  §§  107, 

160. 
V.  Shook,  27  Ark.  137.    §  298. 
V.  Wright,  46  Miss.  679.     §  165. 
Rich  V.  Flanders,  39  N.  a  804.  §§  206, 
331. 
V.  Keyser,  54  Pa.  St  86.    §§  255, 

256. 
V.  Rayle,  2  Humph.  404     §  326. 
Eichards    v.    Dagget,    4   Mass.    537. 
§  322. 
V.  Dyke,  3  Q.  B.  256.     §  396. 
V.  Emswiler,   14    La.   Ann.    658. 

§367. 
V.  McBride,  L.   R   8  Q.  B.  Div. 

119.    §§  219,  258,  261. 
V.  Richards,  76  N.  Y.  188.    §  103. 
V.  Rote,  68  Pa.  St  248.    §  484 
Richardson,    In    re,    2    Story,    571. 
§§  104  110. 
V.  Cook,  37  Vt  599.     §  206. 
V.  CrandaU,  48  N.  Y.  356.     §  330. 
V.  Mass.    Charitable    Asso.    131 

Mass.  174    §  385. 
V.  Pulver,  63  Barb.  67.    §  338. 
V.  Richardson,  6  Ohio,  125.  §  424, 
Richland  Co.  v.  Richland  Center,  59 

Wis.  591.    §  473. 
Richmond  v.  Shickler,  57  Iowa,  486. 
§377. 
V.  Smith,  15  WalL  429.     §  186. 
Richmond  R  R  Co.  v.  Louisa  R.  R 
Co.  13  How.  81.    §§  164  378,  381. 
Ricketson  v.  Richardson,  26  CaL  149. 

§394 
Rider  v.  Maul,  46  Pa.  St  376.    §  364 
Ridge  Avenue  R'y  Co.  v.  Philadel- 
phia, 124  Pa.  St  219.     §  97. 
Ridout  V.  Pain,  3  Atk.  493.     §  220. 
Riggin  V.  CoUier,  6  Mo.  568.     §  306. 
Riggms  V.  State,  4  Kan,  173.    §§  206, 

482. 
Riggs  V.  Brewer,  64  Ala.  282.    §§  138, 
204 
V.  Martin,  5  Ark.  506.     §  10. 
Right  V.  Martin,  11  Ind.  123.     §  164. 


Rigoney  v.  Neiman,  73  Pa.  St  830. 

§252. 
Ripple  V.  Ripple,  1  Rawle,  386.   §  297. 
Risewick  v.  Davis,  19  Md.  82.    §§  104 

391.  392. 

River  Wear  Com'rs  v.  Adamson,  L.  R 
1  Q.  B.  Div.  546 ;  2  App.  Cas.  764 
§§  300,  322. 

Rivers  v.  Cole,  38  Iowa,  677.  §§  206, 
482. 

Rives  V.  Guthrie,  1  Jones'  L.  88.  §  253. 

Road  in  Hatfield  Township,  4  Yeates, 

392.  §  165. 

Road  in  Salem  Township,  103  Pa.  St 

250.     §  454 
Roane  v.  Innis,  Wythe  (Va.),  62.  §  442. 
Robb  V.  Gurney,  2  Rick  (N.  S.)  559. 

§151. 
Roberts'  Will,  ]\Iatter  of,  8  Paige,  446. 

§190. 
Roberts  v.  Cannon,  4  Dev.  &  Bat  L. 
267.    §407. 
v.  Fowler,   3  E.   D.   Smith,  633. 

§398. 
V.  State,  2  Ovei-t  423.    §  166. 
V.  Yarboro,  41  Tex.  453.    §§  223, 
224  328. 
Robertson  v.  Demoss,  23  I\Iiss.  298. 
§137. 
V.  Land  Commissioners,  44  Mich. 

274    §472. 
V.  State,  12  Tex.  App.  541.     §  133. 
Robbms  v.  State,  8  Ohio  St  131.  §  157, 
Robinson's  Case,  131  Mass.  376.  §  331. 
Robinson   v.   Bidwell,  23    CaL    879. 
§§  170,  180. 
v.  Dauchy,  3  Barb.  20.     §  184 
V.  Emei-son,  4  H.  &  C.  355.   §  143. 
V.  Fair,  128  U.  S.  53.     §  395. 
V.  Foster,  12  Iowa,  186.     §  113. 
V.  Gilman,  20  Me.  299.    §190. 
V,  Howe,  13  Wis.  341.    §:478. 
V.  Lane,  19  Ga.  337.    §  101. 
V.  Perry,  17  Kan.  248.    §  123. 
V.  Schmidt  48  Tex.  13.    §§  393, 

393. 
V.  Skipwoith,  33  Ind-  813.    §§  78, 

102. 
V.  Stnte,  15  Tex.  311.    §  332. 


XCVl 


OASES    CITED. 


Eobinson  v.    Yamell,    16   Tex.   382. 
§§  218,  251,  322. 

V.  Waddin^n,    13    Ad.   &    El. 
(N.  S.)  753.     §  112. 
Eobison  v.  Miner,  68  Mich.  549.    §  85. 
Eoche  V.  Maj-or  of  Jersey  City,  40 

N.  J.  L.  257.     §§  154,  204. 
Rochester  v.   Barnes,   26  Barb.  657. 

§140. 
RockliiU  T.  Nelson,  24  Ind.  422.    §  315. 
Rock  Hill  College  v.  Jones,  47  Md.  1. 

§164. 
Rockliold  T.    Blevins,   6    Baxt.    115. 

§20. 
EockweU    V.   Clark,  44    Conn.    534. 
§205. 

V.  HubbeU,  2  Doug.  (Mich.)  197. 
§§  476,  482. 
Roddam  v.  Morley,  1  De  G.  &  J.  1. 
§367. 

V.  Ferrars,  2  B.  &  P.  547.    §  368. 

V.  Hersey,  3  Wils.  275.     §§  104, 
110. 
Roff  V.  Johnson,  40  Ga.  555.     §  284. 
Rogers'  Case,  2  Greenlf.  303.     §  193. 
Rogers,  Ex  parte,  7  Cow.  526.     §  390. 
Rogers    v.    Goodwin,    2    Mass.    475. 
§§  310,  311,  314. 

V.  Hillhouse,  3  Conn.  398.    §  426. 

V.  Kennard,  54  Tex.  30.     §  326. 

V.  Kneeland,  10  Wend.  218.  §  334. 

V.  Mm-ray,  3  Paige,  390.     §  454. 

T.  Rogers,  3  Wend.  503.     §§  215, 
219. 

V.  State,  6  Ind.  31.     §  132. 

V.  Stephens,  86  N.  Y.  623.     §  99. 

V.  Vass,  6  Iowa,  405.     §  223. 

V.  Watrous,  8  Tex.  62.     §  154. 

V.  Windoes,  48  Mich.  628.     §  81. 
Rohrbacher  v.  City  of  Jackson,  51 

Miss.  735.    §§  26,  237. 
Pu)les  V.  RoseweU,  5  T.  R.  538.     §  462. 
Rolfe  V.  McComb,  2  Head,  558.  §  184. 
Rolland  v.  Commonwealth,  82  Pa.  St. 

306.     §§  252,  260. 
Rolle  V.  Whyte,  K  R.  3  Q.  B.  305. 

§256. 
Romaine  v.  Kinshiner,  2  HOt  519. 

§314. 


Rood  V.  Chicago,  etc.  R'y  Co.  43  Wis. 
146.    §166. 

V.  McCargar,  49  CaL  117.    §§  170, 
176. 
Roose  V.  Perkms,  9  Neb.  304.    §§  374, 

375. 
Roosevelt  v.  Godard,  52  Barb.  553. 
§333. 

V.  Maxwell,  3  Blatch.  391.    §  254. 
Rosecrants  v.  Shoemaker,  60  Mich.  4 ; 

26  N.  W.  Rep.  794.     §  375. 
Rosenberg   v.  Frank,    58    CaL    387. 

§395. 
Rosenplanter  v.  Roessle,  54  N.  Y.  262. 

§§  237,  238. 
Ross'  Case,  2  Pick.  165.     §  468. 
Ross  V.  AustiU,  2  Cal.  183.    §  298. 

V.  Barland,  1  Pet.  655.     §  442. 

V.  RosweU,  60  Ind.  235.     §  302. 

V.  DaTis,  97  Ind.  79.     §§  87,  93^ 
102. 

V.  Duval,  13  Pet.  45.   §§  68,  482. 

V.  Jones,  22  WaU.  576.     §  368. 

V.  M'Lung,  6  Pet.  283.     §  187. 

V.  Reddick,  2  IlL  73.     §  193. 

V.  Winsor,  48  N.  J.  L.  95.    §  128. 
Rothgerber    v.   Dupuy,    64    IlL   452. 

§§  366,  398. 
Rottenberry  v.   Pipes,   53  Ala.    447, 

§206. 
Roimds  V.  Waymart,  81  Pa.  St  395. 

§157. 
Roundti-ee,  Ex  parte,  51  Ala.  42.   §  256. 
Rowa,  The,  7  Ex.  Div.  247.     §  268. 
Rowan  v.  Runnels,  5  How.  134.  §  319. 
Rowberry    v.    Morgan,    9    Ex.    730. 

§115. 
Rowley  v.  Stray,  32  Mch.  70.    §§  321, 

407. 
Royle  V.  Hamilton,  4  Yes.  437.   §  253. 
Ruckmaboye  v.   LuUoobhoy    Matti- 

chand,  8  Moore's  P.  C.  4.    §  255. 
Ruckman  v.  Ransom,  35  N.  J.  L.  565. 

§151. 
Rude  V.  Mitchell,  97  Mo.  365.     §  398. 
Rudderow  v.  State,  31   N.  J.  L.  512. 

§234. 
Rue  V.  Alter,  5  Denio,  119.     §§  290, 

364. 


CASES   CITED. 


XCVU 


Ruddy,  Goods  of,  L.  R  2  P.  &  D.  330. 

§§  419,  440. 
RuiTner  v.  Hamilton  Co.  1  Disney,  89. 

§138. 
Ruggles  V.  Illinois,   108   U.   S.   526. 
§§  234,  240,  293,  300,  381. 

V.   Washington  Co.   3    Mo.  496. 
§g  215,  240. 
Rumsey   v.    People,    19    N.    Y.    48. 

§§  181,  183. 
Rusling  V.  Sebree,  12  Busli,  198.  §  241. 
R'jsrjel  V.  Transylvania  University,  1 

Wheat.  432.     §  390. 
Russell  V.  cAge,  66  Tex.  428.    §  384. 

V.  Farquliar,  55  Tex.  359.    §§  234, 
241,  429. 

V.  Irby,  13  Ala,  131.    §  399. 

V.  Martin,  15  Tex,  238.    §  306. 

V.  Mayor,  etc.  2  Denio,  461.    §  370. 

T.  Wheeler,  Hempst.  3.     §g  391, 
435,  440. 
Rutgers  v.  New  Bitms wick,  42  N,  J.  L. 

51.    §§  127,  128. 
Ruther  v.  Harris,  L.  R  1  Ex.  Div,  97. 

§259. 
Rutherford  v.  Greene,  2  ^Tieat  196. 
§§  206,  259. 

V.  HamUton,  97  Mo.  543.    §  128. 

V.  Heddens,  82  Mo.  388.    §  129. 

V.  Maynes,  97  Pa.  St  78.    §  390. 
Rutland    v.    Mendon,    1    Pick.    154. 

§§  255,  333. 
Ryan's  Case,  45  Mich.  173.    §  138. 
Ryan  v.  Commonwealth,  80  Va.  385. 
§§  395,  463. 

V.  Couch,  66  Ala.  244    §  289. 

V,  Johnson,  5  Cal.  86.    §  121. 

V.  Lynch,  68  IlL  160.  §§  41, 45, 48, 
181. 

V.  State,  32  Tex.  280.    §  207. 

V.  State,  5  Neb.  276.    §  220. 
Ryder  v.  Cohn,  37  Cal.  69.    §  19. 
Ryegate  v.   Wardsboro,  30  Yt  746. 

§§  215,  238,  239. 
Ryers,  Matter  of.  72  N.  Y.  1.     §  169. 
Ryerson  v.   Laketon,   52  Mich.  509. 
§365. 

V.  Utley,  16  Mich.  269.     §§  78,  82, 
85,  87,  88,  102. 


Sacalaris  v.  Eureka,  etc.  R  R  Co.  18 

Nev.  155.    §  306. 
Sacia  v.  De  Graaf,  1  Cow.  356.  §§207, 

368,  426. 
Sackett,  etc.  Streets,  Matter  of,  74 

N.  Y.  95.    §§  87,  88,  98,  102,  169, 

170. 
Sackett  v.  Sackett,  8  Pick.  309.  §§  16, 

17,  184. 
Saco  V.  Gumey,  34  Me.  14.    §§  165, 

166. 
Sacramento    v.    Bird,    15    CaL    294. 

§§  154,  204 
Sadler   v.    Langham,    34   Ala,   311. 

§331. 
Sage  V.  Brooklj-n,  89  N.  Y.  189.  §  324 
Saginaw  Gas  Light  Co.  v.  Saginaw, 

28  Fed,  Rep.  529.    §§  378,  384 
St   Charles   v.    NoUe,    51    Mo.   123* 

§365. 
St   Cross  V.  Howard,  6  T.  R   338. 

§247. 
St  Lawrence,  etc.  R  R  Co.  v.  Lett, 

26  Am.  &  Eug.  R  R  Cas.  454 

§371. 
St  Louis  V.  Alexander,  23  Mo.  589. 
§161. 

V.  Goebel,  32  Mo.  295.    §  354 

V.  Green,  7  IMo.  App.  468.  §§  92, 95. 

V.  Lauglilm,  49  Mo.  559.     §§  275, 
365. 

V.  Shields,  62  Mo.  247.    §  117. 

V.  Teifel,  42  Mo.  578.    §§  78,  82, 
87,  89,  93,  101. 
St  Louis  Co.  Ct  V,  Sparks,  10  Mo.  117. 

§448. 
St  Louis  G.  L.  Co.  v.  American  F.  Ins. 

Co.  33  Mo.  App.  348.     §  305. 
St  Louis,  etc.   R'y  Co.  v.  Berry,  41 
Ark.  509.     §  364 

V.  Clark,  53  Mo,  214     §  237. 

V,  Wilder,  17  Kan,  244    §  453. 
St  Martin  v.  New  Orleans,  14  La.  Ann. 

113.     §  217, 
St  Paul  V.  Colter.  12  Mmn.  50.     §  88. 
St   PauU  V.    Lewis,    4    Watts,    402. 

§  30S. 
St  Paul.  etc.  R'y  Co.,  Matter  of,  34 

Minn.  227.     §  387, 


XCVUl 


CASES   CITED. 


St  Paul,  etc.  R.  R  Co.  v.  Greenhalgh, 
26  Fed.  Eep.  563.     §  379. 

V.Phelps, 26 Fed. Rep. 569.  §§379, 
393. 
Salkeld  v.  Johnson,  2  C.  B.  756.  §  300. 

V.  Johnson,  2  Ex.  256.     §  210. 

V.  Jolinson,  1  Hare,  196.     §  212. 
Sallee  v.  Ireland,  9  Mich.  154     §  112. 

V.  Waters,  17  Ala.  482.     §  422. 
Salhng  V.   McKiuney,   1   Leigh,  42. 

§429. 
Salomon  v.  State,  28  Ala,  83.    §  306. 
Salter  v.  Bui-t,  20  Wend.  205.     §  115. 
Salters  v.  Tobias,  3  Paige,  338.   §  200. 
Saltovm  V.  Advocate-General,  3  Macq. 

659.    §247. 
Sampeyi-ac  v.  United  States,  7  Pet 

222.     §§  206,  482. 
Sams  V.  King,  18  Fla.  557.    §§  219, 

220,  221. 
Sam  Slick,  The,  2  Curt  480.    §§  368, 

426. 
Sanauels  v.  Commonwealth,  10  Bush, 

491.     §  324 
San  Antonio  v.  Gould,  34  Tex.   49. 
§80. 

V.  Mehaffy,  96  U.  S.  312.    §  96. 
Sanders  v.  State,  77  Ind.  227.    §§  153, 

167,  226,  227. 
San  Diego  v.  Granniss,  77  CaL  511. 

§§  239,  246. 
Sandiman  v.  Breach,  7  B.  &  C.  96. 

§  270. 
Sands  v.  Campbell,  31   N.  Y.    345. 

§426. 
Sanford  v.  Tliompson,  18  Ga  554  §  13. 
San  Francisco  v.  Hazen,  5  CaL  169. 

§§  215,  239. 
Sangamon  Co.  v.  Springfield,  63  IlL 

66.     §  473. 
San  Mateo  County  v.  R  R  Co.  8  Saw- 
yer, 238.    §§41,45. 
San  Pedro,  The,  2  Wlieat  132.    §  215. 
Santa  Maria,  The,   10  Wheat    442. 

§299. 

Sanson  1  v.  Greenough,  55  Iowa,  127. 

§070 

Santissima  Trinidad,  The,  7  Wheat 
283.    §297. 


Santo  V.  State,  2  Iowa,  165.    §§  67, 72, 

180,  331. 
Sarahass  v.  Armstrong,  16  Kan.  192. 

§296. 
Sasscer  v.  Farmers'  Bank,  4  Md.  409. 

§296. 
Satterlee  v.  Matthewson,  2  Pet  380L 

§§  465,  474  480,  482,  483. 
Saul  V.  His  Creditors,  5  Mart  (N.  S.) 

569.     §§  12,  138, 191. 
Saunders  v.  Carroll,  12  La.  Atiti.  793. 
§206. 

V.  Provisional   Municipality,    24 
Fla.  226.     §§  101,  132. 
Savage  v.  O'Neil,  44  N.  Y.  298.   §184 

V.  State,  18  Fla.  970.    §  110. 

V.  Walshe,  26  Ala  619.    §  449. 
Savannah  v.  KeUy,   108  U.    S.   184 

§157. 
Savannah,  etc.  R'y  Co.  v.  Geiger,  21 

Fla  669.    §  170. 
Savings  Bank  v.  Allen,  28  Conn.  97. 
§164 

v.  United  States,  19  WalL  227. 
§§  222,  223. 
Savings  Institution  v.  Makin,  23  Ma 

230.    §§221,222. 
Sawyers  v.  Baker,  72  Ala  49.    §  154 
Sayre  v.  Elyton  Land  Co.  73  Ala  85. 
§394 

V.  Pollard,  77  Ala  608.    §§  41,  45. 

V.  PoUard,  51  Mich.  129.     §  26. 

V.  Wheeler,  32  Iowa,  559.     §  184 
Scaggs  V.  Baltimore,  etc.  R  R  Co.  10 

Md.  268.     §§  219,  236,  269,   329, 

398,  431. 
Scaife  v.  StovaU,  67  Ala  237.    §§  290. 

398. 
Scales  V.  State,  47  Ark.  476.    §  135. 
Scanlan  v.  Childs,  33  Wis.  663.   §  309. 
Schafer  v.  Smith,  63  Ind.  226.     §  374 

V.  Eneu,  54  Pa  St  304    §  484 

V.  State,  49  Ind.  460.     §  374 
Scheftels   v.    Tabert,    46    Wis.    439. 

§134 
Schenley's    Appeal,    70    Pa  St    98. 

§263. 
Schenley  v.  Commonwealth,  36  Pa. 

St  29.     8  484 


CASES    CITKD. 


XCLX 


Schlandecker  v.  Marshall,  73  Pa.  St 

200.     §  257. 
Schlegel  v.  Am.  Beer,  etc.  Co.  12  Abb. 

New  Cos.  280 ;  64  How.  Pr.  190. 

§237. 
Schlict  V.  State,  56  Ind.  173.    §  303. 
Schmidt,  Ex  parte,  24  S.  C.  363.  §  157. 
Schmidt  v,  Hoyt,   1  Edw.   Ch.  652. 
§402. 

V.  IVIitchell,  84  IlL  195.     §  374. 
Schneider  v.  Hosier,  21  Oliio  St.  98. 
§374 

V.  Staples,  66  Wis.  167.    §§  137, 
145,  154. 
School  Diiectors  v.  School  Directors, 

73  IlL  249.     §§  132,  260. 
School  Inspectors  v.   People,  20  IH 

525.    §395. 
School  Trustees  v.  Commissioners,  1 

Nev.  335.    §  56. 
Schooner    Enteiprise,    1    Paine,    32. 

§§  347,  349,  353. 
Schooner  Han-iet,  The,  1  Story,  251, 

§§  349,  350,  356. 
Schooner  Industry,  The,  1  GalL  114. 

§349. 
Schooner  Nymph,  The,  1  Sumn.  516. 

§356. 
Schooner  Pauhne's  Cargo  v.  United 

States,  7  Cranch,  152.    §  237. 
Schooner  Rachel  v.  Umted  States,  6 

Cr.  329.     §§  163, 164. 
Schriefer    v.  Wood,  5    Blatch-  215. 

§§  247,  254 
Schroder    v.   Crawford.   94   HL   357. 

g§  374, 375. 
Schulherr  v.  Bordeaux,  64  "Miss.  59. 

§§72,75. 
Schulenberg  v.  Harriman,  21  WalL 

44    §379. 
Schuster  v.  Supervisors,  27  ^linn.  253. 

§339. 
Schuyler  v.  Mercer,  4  Gilm.  20.  §  139. 
SchuylkiU  Nav.  Co.  v.  Loose,  19  Pa. 

St  15.     §  207. 
Schwenke  v.  Union  Depot  &  R.  R. 

Co.  7  Colo.  512.     gg  147.  157,  159. 
Scogins  V.  Perry,  46  Tex.  111.    §§  392, 

393. 


Scorpion  S.  M.  Co.  v.  Marsano,  10  Nev. 

370.     g  394 
Scotia,  Tlie,  14  WalL    170.     §§  293, 

295,  29t>. 
Scott  V.  Duke,  3  La.  Ann.  253.   §  482. 

V.  Lunt's  Adm'r,7  Pet  603.  §  184 

v.  Searles,  1  Sm.  &  ]M.  590.     §  283. 

V.  Simons,  70  Ala,  352.     §§  154, 
400. 

V.  State,  22  Ark.  369.     §§  215.  228. 
Scovem    v.  State,   6    Ohio    St   268. 

§327. 
ScoviUe  V.   Canfield,   14    Jolm,   338. 

§  12. 
Scraflford  v.  Gladwin  Supervisors,  41 

Mich.  647.     §  114 
Scruggs    V.    Brackin,    4    Yerg.   528. 

§§  301,  307. 
Scudder  v.  Trenton  Delaware  Falls 

Co.  1  N.  J.  Eq.  694     §  169. 
Scutfs  Case,  2  Va.  Cas.  54    §  166. 
Seal  V.  State,  13  Sm.  &  M.  286.   §  44-5. 
Seale  v.  Mitchell,  5  CaL  403.    §§  314, 

315. 
Seamans  v.  Carter,  15  Wis.  548.    §  200. 
Searing  v.  Brinkerhoflf,  5  Jolin.  Ch. 

329.     §  208. 
Searles  v.  Kanawha,  etc.  R  R  Co.  37 

Am.  &  Eng.  R  R  Cas.  179.   §  371. 
Sears  v.  Burnham,  17  N.  Y.  445.  §  451. 

V.  Cottrell,  5  i\Iich.  254     §g  5,  21, 
197. 
Seat  of  Government  Case,  1  Wash. 

T'y,  115.    §65. 
Seay  v.  Bank  of  Rome,  66  Ga.  609. 

§§  93,  96. 
Second  Ave.  Church,  Matter  of,  66 

N.  Y.  395.     §§  221,  365. 
Second  German  Am.  B.  Asso.  v.  New- 
man, 50  Md.  62.     §  101. 
Second  Municipality  v.  Morgan,  1  La. 

Ann.  111.    §  175. 
Sedgwick  v.   Bimker,   16  Kan.  498. 

§  206. 
Seekonk  v.  Rehoboth,  8  Cusli.   371. 

g§lll.  113. 
Seely  v.  State.  11  Ohio,  501.     §  333. 
Seidenbender  v.  Charles,  4  S.  &  R 

159.     §  336. 


g 


CASES    CITED. 


Selby,  In  re,  6  Mich.  193.     §  456. 
Selden  v.  Preston,  11  Bush,  191.    §  20. 
Sellare    v.    Carpenter,    72    Me.    497. 
§343. 
V.  Fite,  3  Baxt.  131.     §  447. 
Sekiia,  etc.  R.  R.  Co.,  Ex  parte,  45 

Ala.  696.     §  311. 
Selmau  v.  Wolfe,  27  Tex.  68.    §  386. 
Semmes  v.  Hai-tford  Ins.  Co.  13  Wall 

158.    §  368. 
Sample  v.  Hagar,  27  CaL  163.    §  181. 
Sequestration    Cases,    30    Tex.    688. 

§478. 
Seven  Hickory  v.  Ellery,  103  U.  S. 

433.     §  55. 
SewaU  V.  Jones,  9  Pick.  412.    §§  863, 

367. 
SeweU  V.  Taylor,  29  L.  J.  K  C.  50. 

§262. 
Seymoiu-  v.  Bailey,  66  IlL  288.    §  20. 
V.  Judd,  2  N.  Y.  464.     §  456. 
V.  Marvin,  11  Barb.  80.    §§  296, 

306. 
V.  Phillips,  etc.  Co.  7  Biss.  460. 
§342. 
Shadwell  v.  Angel,  1  Burr.  56.    §  115. 
Shakman  v.  Schlueter,  46  N.  W.  Rej). 

543.     §  459. 
ShaUow    V.    Salem,    136    Mass.   136. 

§201. 
Shannon  V.  People,  5  Mich.  71.    §  154. 
Sharp,  Ex  parte,  10  Jur.  (N.  S.)  1018. 

w§432. 
Sharp  V.  Johnson,  4  HUI,  92.     §§  207, 
290,  365,  390,  456. 
V.  Mayor,     etc.     31     Barb.    572. 

§§  83,  95,  360,  437. 
V.  Speir,  4  Hill,  76.    §§  257,  290, 
863,  865,  387,  890,    400,  454, 
456. 
V.  Warren,  6  Price,  131.    §§  138, 
151. 
Shattuck  V.    Daniel,    52    Miss.    834. 

§20. 
Shaw  V.  Brown,  35  Miss.  246.    §§  12, 
189. 
V.  Clark,  49  Mich.  384.     §§  350, 

353. 
V.  Dodge,  5  N.  H.  465.    §  59. 


Shaw  V.  Morley,  L.  R  3  Ex.  137.  §  380. 

V.  Orr,  30  Iowa,  585.    §  449, 

V.  Railroad    Co.    101   U.   S.   557. 
§290. 

V.  Rudder,  9  Irish  C.  L.  (N.  S.) 
219.     §  210. 
Shawnee  Co.  v.  Carter,  2  Kan.  115. 

§  363. 
Shear  v.  Commissioners  of  Columbia, 

14  Fla,  146.    §§  139,  147. 
Shedd  V.  Moran,  10  IlL  App.  618.  §  14. 
Sheets  v.   Hanbest,  81  Pa-  St   100. 
§246. 

V.  Selden,  2  WalL  177.     §§  111, 
112. 
Shelby  v.  Guy,  11  Wheat.  361.  §§185, 

186,  191,  424,  479. 
Sheley    v.    Detroit,    45    Mich.    431. 

§§  235,  407. 
Shelton   v.  Baldwin,   26    lyiiss.  439. 

§157. 
Shepardson  v.  Railroad  Co.  6  Wis. 

605.    §137. 
Shepherd  v.   People,  35   N.  Y.  406. 

§470. 
Sheppard  v.  Gosnold,  Vaughan,  169. 
§307. 

V.  Johnson,  2  Humph.  296.  §  124 

V.  State,  1  Tex.  App.  522.    §  164. 
Sherbom   v.  Wells,   3  B.  &  S.  784. 

§256. 
Sheridan  v.  Stevenson,  44  N.  J.  L.  371. 

§157. 
Sheriff  v.  Caddo  Parish,  37  La.  Ann. 

788.     §  300. 
Sherman  v.  Dodge,  6  John-  Ch-  107. 
§454. 

V.  State,  17  Fla  888.    §§  143,  143. 

v.  Story,  30  CaL  376.    §§  37,  28, 
30,  183. 
Sherman  Co.  v.  Sunons,  109  U.  S.  735. 

§194. 
Sherwin  v.  Bugbee,  16  Vt  444.  §§  311, 

328. 
Sherwood  v.  Judd,  3  Bradf.  419.  §  13. 

V.  Reade,  7  HiU,  431.    §§  207,  362, 
390. 
Shiel  V.  Mayor,  etc.  6  H.  &  N.  79G. 

§370. 


OASES    CITED. 


CI 


Shields  v.  Bennett,  4  W.  Va.  83.  §§  78, 
80,  82,  83,  88,  93,  135,  170. 

V.  Perkins,  2  Bibb.  230.     §  313. 
Shiletto  V.  Thompson,  L.  R.  1  Q.  B. 

Div.  12.     §  280. 
Ship    Cotton    Planter,   1   Paine,   23. 

§280. 
Shipley  v.  Terre  Haute,  74  InA  297. 

§§  93,  96. 
Shipman  v.   Hanbest,  4  T.   R.    109. 

§§  168,  396. 
Shivers  v.  Newton,  45  N.  J.  L.  469. 
§§  85,  86,  87,  88,  102. 

V.  Wilson,  5  Har.  &  John.  130. 
§§  391,  392. 
Shoemaker  v.  Lansing,  17  Wend.  327. 
§§  218,  239. 

V.  Smith,  37  Ind.  122.     §  103. 

V.  State,  20  N.  J.  L.  153.    §  143. 
Shonk    V.    Brown,   61    Pa.    St    327. 

§§  483,  484 
Shotwell's  Ex'r  v.  Dennman,  1  N.  J. 

L.  174.     §  358. 
Shotwell  V.  Harrison,  22  Midi.  410. 

§293. 
Shrader,  Ex  parte,  33  CaL  283.     §  11. 
Slu-ewsbury  v.  Boylstou,  1  Pick.  105. 

§  260. 
Slirewsbury,  Earl  of,  v.  Scott,  6  C.  B. 

(N.  S.)  1.     §§  194,  196. 
Sliriedley  v.  State,  23  Ohio  St  130. 

§232. 
Shropshire    v.   State,    12    Ark.    190. 

§306. 
Shugai-t  V.  Egan,  83  IlL  56.  §§  374, 375. 
Shmnaker   v.  Johnson,   35  Ind.   33. 

§458. 
Shumate  v.   Williams,  84    Ga.   251. 

§411. 
S  hum  way  v.  Bennett,  29  Mich.  465. 

§5. 
Shute  V.  Wade,  5  Yerg.  8.    §  322. 
Sibley  v.  Smith,  2  Midi.  486.    §§  290, 

363,  390,  454,  455. 
Sickles  V.  Sharp,  13  John.  497.    §§  349, 

359. 
Sidney  v.  White,  12  Ala.  728.     §  191. 
Sidwell  V.  Evans,  1  Pen.  &  W.  383. 

§  192. 


Siebold,   Ex    parte,   100    U.   a    371 

§§  21,  197. 
Siegbert  v.  Stiles,  39  Wis.  533.    §  30a 
Sifred  v.  Commonwealtli,  104  Pa.  St 

179.     §  143. 
Sika  V.  Chicago,  etc.  R  R  Co.  21  Wis. 

370.    §  147. 
Sill  V.  Village  of  Coming,  15  N.  Y. 
297.    §395. 

V.  Worswick,    1    H.    Black.   672. 
§13. 
SUver  V.  Ladd,  7  Wall  219.    §§  218, 

417. 
Silvergood  v.  Storrick,  1  Watts,  532. 

§342. 
Sirnco   V.   State,   8    Tex.    App.    406. 

§§  206,  482. 
Simmons  v.   Bradley.  27  Wia   68a 
§154. 

V.  Jacobs,  52  Me.  147.     §  111. 

V.  Ti-umbo,  9  W.  Va.  358.    §  306. 
Simms  v.  Southern  Exp.  Co.  38  Ga. 

129.     §  297. 
Simonds    v.    Powers.    28    Vt     354 

§§  217,  219,  246. 
Simouson    v.    Durfce,  50  Mich-  80. 

§  115. 
Simontou  v.  Barrel!,  21  Wend.  362. 

§S  414  416,  437. 
Simpkin,   Ex  parte,  105  Eng.  C.  I* 

392.     §  115. 
Simpson    v.   BaUey,  3  Oregon,  515. 
§96. 

V.  Fogo,  1  H.  &  IkL  195.    §  13. 

V.  Robert  35  Ga.  180.    §  259. 

V.  Uuwin,  3  B.  &  Ad.  134   ^•§  355, 
429. 

V.  Willard,  14  S.  C.  191.     §  307. 
Sims    V.   Hampton,   1  S.  &  R  411. 

§§  111,  112,  115. 
Singer  v.  Hassou,  50  L.  T.  326.   §  482. 
Singer  M.  Co.  v.  Graham,  8  Oregon, 

17.     §211. 
Smgle  V,  Supervisors,  38  Wis.  36a 

§483. 
Sinnott  v.  WTiitechapel,  3  C.  B.  (N.  S.) 

674    §  324. 
Skinner  v.  Collector,  42  N.  J.  L  407. 

§§  127,  128. 


cu 


CASES   CITED. 


Skinner  v.  Usher,  L.  R  7  Q.  B.  423. 
§§  256,  262. 
V.  AVilhelni,  63  Mich.  568.     §  103. 
Skyrme  v.  Occidental,  etc.  Co.  8  Nev. 

219.     §  134. 
Slack    V.   Highgate  Ai-chway  Co.  5 
Taimt.  792.     §  345. 
V.  Jacob,  8  W.  Va  640.     §§  78, 82, 

96,  330,  331,  332. 
V.  Maysville,  etc.  R.  R  Co.  13  B. 
Mon.  22.     §§  8,  75. 
Slade  V.  Drake,  Hobart,  295.     §  204. 
Slaughter-House  Cases,  16  Wall.  36. 

§§  164,  370,  473. 
Slauson    v.    Racine,    13    Wis.    398. 

In. 
SUdeU  T.  Grandjean,  111  U.  S.  412. 

§§  378,  379. 
Shnger  v.   Henneman,  38  Wis.  504. 

gg  67,  69,  174. 
Sloan    V.   Johnson,   14  S.   &  M.   47. 
§208. 
V.  Pacific  Co.  61  Mo.  24.    g  473. 
Smails  v.  White,  4  Neb.  357.    §  185. 
Small  V.  EtMck,  5  Wend.  137.   §§111, 
112. 
V.  Small,  18  Atl.  Rep.  497.     §  333. 
Smets  T.  Weatherbee,  R.  M.  Charlt 

537.     §  104. 
Smith,  Ex  parte,  40  CaL  419.     §§  137, 

157,  158. 
Smith,  Ex  parte,  L.  R.  3  Q.  B.  Div.  52. 

§333. 
Smith  V.  Adams,  5  De  Gex,  M.  &  G. 
712.     §§  218,  246. 
V.  AUen,  39  Miss.  469.     §  428. 
V.  Appleton,  19  Wis.  468.    §  475. 
V.  Arapahoe  Dist.  Ct.  4  Colo.  235. 

§165. 
V.  Ai-gaU,  6    Hill,  479.     §§  207, 

400. 
V.  Banker,  3  How.  Pr.  142.  §  225. 
V.  Bartram,    11     Ohio    St.    691. 

§§  184,  192. 
V.  Bell.  10  M.  &  W.  378.     §§  219, 

258. 
V.  Bohler,  72  Ga.  546.     §§  93,  96. 
T.  Brown,    L.    R    6    Q.   B.   729. 
§255. 


Smith  V.  Cassity,  9  B.  Mon.  192.  §114. 
V.  Causey,  28  Ala.  568.     g  208. 
V.  Charter  Oak  Ins.  Co.  64  Mo. 

330.     g  368. 
V.  Commonwealth,  8  Bush,  108. 

gg  78,  82,  93,  97. 
V.  Crittenden,      16      Mich-     152. 

g449. 
V.  Dist.  Court,  4  Colo.  235.    g  464. 
V.  Drew,   5    Mass.   514.     §§  325, 

399. 
V.  Dunn,  64  Cal.  164.     §  119. 
V.  Estes.  46  Me.  158.     §  167. 
V.  Gould,  4  Moore  P.  C.  21.  §  184 
v.  Harris,  34  Ga.  182.    §  111. 
T.  Helmer,  7  Barb.  416.     g  340. 
V.  Hickman,  Cooke,  330.     g§  138, 

154.  288. 
V.  Hoyt,  14  AVis.  252.   §§  109, 162. 
v.  Janesville,  26  Wis.  291.    §  73.    - 
V.  Judge,  17  Cal.  557.     g§  2,  5,  9, 

121. 
T.  Kernochen,  7  How.  198.    g  185. 
V.  Kibbee,  9  Ohio  St  563.    g  206. 
T.  Lindo,  27  L.  J.  C.  P.  200 ;  4  C.  B. 

(N.  S.)  395.     §§  247,  292. 
Y.  Lockwood,13Barb.209.  g§204, 

825. 
V.  LouisTille,  etc.   R   R.  Co.   62 

Miss.  510.     §  480. 
T.  Madison,  7  Ind.  86.     §  380. 
T.  Mayor,  etc.  34  How.  Pr.  508. 

gjj  95,  103. 
T.  Mitchell,    Rice,    316.    §§    184, 

256. 
V.  Moflfat,  1  Barb.  65.   §§  207, 290, 

360,  435,  437,  444 
V.  Morrison,  22  Pick.  430.     §  107. 
V.  Mumford,  9  Cow.  29.     g  207. 
V.  Nobles  Co.  37  Minn.  535.   §  154 
V.  OdeU,  1  Pm.  (Wis.)  449.    §  395. 
V.  People.  47  N.  Y.  330.     §§  137, 

152,  153,  223,  243,  284,  324. 
v.  Philadelphia,  81    Pa.    St    Sa 

§240. 
V.  Randall,  3  Hill,  495.     g§  207, 

400. 
V.  RandaU,  6  CaL  47.    g  246. 
V.  Rines,  2  Sunm.  354     g  432. 


OASES    CITED. 


cm 


Smith  V.  Rowles.  85  Ind  3G4. 
V.  Smith,  17  Gratt.  545.     { 
V.  Smith,  19  Wis.  522. 
V.  Speed,   50  Ala.  276. 

151,  300. 
V.  Spoouer,  3  Pick.  229. 


State,  28  Ind.  321, 

402. 
State,  66  Md.  215. 
State,  14  Mo.  147. 
State,  1  Stew.  506. 
State,  17  Tex.  191. 


§114. 
§184. 
256. 

§§  138, 

§367. 
§§  211,  231, 

§,§  237,  332. 
§154. 
§§142,154. 
5^§  350,  352. 


Stevens,   82   IlL   554.     g§  207, 
298,  416,  440. 

V.  Stevens,  10  Wall  321.    §§  204, 
325,  326. 

V.  Strong,  2  Hill.  241.     §  193. 

V.  Tallapoosa.  2  Woods.  574.  §  185. 

V.  Tilly,  1  Keble.  712.     ^  310. 

V.  Van  Gilder,  56  Ark.  527.   §  480. 

V.  Waters,  25  Ind.  397.     §  363. 
Smithee  v.  Garth,  33  Ark.  17.     §  41. 
Smoot  V.  Fitzhugh.  9  Port.  72.    §  190. 

V.  Hart,  33  Ala.  69.     §  429. 
Smythe    v.     Fiske,     23    Wall     374. 

§162. 
Sneed    v.   Commonwealth,   6   Dana, 

339.     §§  227,  234,  237,  332,  349. 
Sneider  v.  Heidelberger,  45  Ala.  126. 

§476. 
Snell  V.  Bridgewater,  etc.  Co.  24  Pick. 
296.     §  254. 

V.  Campbell.   24    Fed.   Rep.   880. 
^166. 
Snoddy  v.  Cage,  5  Tex.  106.     §  256. 
Snyder  v.  Bauchman,  8  S.  &  R.  336. 
§342. 

V.  Snyder,  3  Barb.  621.     §  464 

V.  Warford,  11  Mo.  513.    §  125. 

V,  Warren,  2  Cow.  518.     §  111. 
Society,  etc.  v.  Wheeler,  2  Gall.  139. 

§§  200,  482. 
Society  for  Propagating  the  Gospel  v. 

NewHaven,8W^heat493.  §§206, 

472. 
Solomon  v.  Commissionei's.   41   Ga. 

157.     §§  55,  229,  309. 
Solomons    v.  Freeman,   4  T.  R.  557. 

§115. 


Solyer  v.  Romanet,  52  Tex.  562.  §  29a 
Somerset  v.  Dighton,   12  Mass.  382. 

§§  206,  240,  246. 
South  v.  State,  80  Ala.  617.    §  469. 
South  Carolina  v.  GaiUard,  101  U.  S. 

433.     §^  105,  464. 
South  CaroUna  R.  R.  Co.  v.  Nix,  68 

Ga.  572.     §  12. 
Southampton    Bridge    Co.   v.   Local 

Board  of  Southampton,  8  E.  &  R 

804.    g  396. 
Southgate  v.  Goldthwaite,  1  Bailey, 

367.     §  223. 
South  &,  North  Ala.  R.  R.  Co.  v.  Mor- 
ris. 65  Ala.  193.    §§  169,  33L 

V.Wood,   74  Ala.   449.     §§  296, 
306. 
South  Ottiiwa  V.  Perkins,  94  U.  S.  26a 

^i;  41,  42,  48,  53,  181,  182,  183. 
South  war  k  Bank  v.  Commonwealth, 

26  Pa.  St.  446.     §g  136,  138,  160, 

168,  294,  300. 
South's  Heu-s  v.  Hay,  3  Bibb,  522L 

§202. 
Southwestern  R.  R  Co.  v.  Cohen,  49 

Ga.  627.     ^^  350,  432. 
South-worth,   Matter  of,  5  Hun,  55. 

§156. 
Sovereign  v.  State,  7  Neb.  409.   §§  131, 

132,  135. 
Spackman,  Ex  parte,  1  IMacn.  &  G. 

170.     ^§219,  268. 
Spangler  v.  Jacoby,  14  IlL  279.  §§  41, 

43,  48,  462. 
Sparhawk  v.  Sparhawk,   116    Mass. 

315.     §  176. 
Sparks  v.  Clapper,  30  Ind.  204.    §  206. 
Sparrow  v.  Commissioner  of  Land 
Office,  56  Mich.  567.    §  170. 

V.  Davidson  CoUege,  77  N.  C.  35. 
§252. 

V.  Strong,  3  Wall.  97.     §  298. 
Spalding  v.  ^Uford,  1  Pick.  33.  §g  107. 
137. 

v.  Lowell,  23  Pick.  71.    §  381. 
Speckert  v.  Louisville,   78  Ky.  287. 

§§  164,  166. 
Speed  v.  Crawford,  3  Met  (Ky.)  207. 

§26. 


OIT 


CASES    CITED. 


Speer  v.  Mayor,  etc.  42  Alb.  L.  J.  232. 
§47. 

V.  Plank  R.  Co.   22  Pa,   St   376. 
§g  46,  51. 

V.  School  Dii-ectors,  50  Pa.  St  150. 
§§  331,  332. 
Spence   v.    McGowan,  53   Tex   30. 

§§  392,  393. 
Spencer's  Case,  6  Coke,  9b.    §  424. 
Spencer  v.  McBride,   14    Fla.    403. 
§§479,482. 

V.  Metropolitan  Board,  L.  R  22 
Ch.  Div.  162.    §  246. 

V.  State,  5  Ind.  41.    §§  136,  234 
Spensley   v.  Lancashire  Ins.   Co.  54 

Wis.  433.    §  305. 
Spieres  v.  Parker,  1  T.  R  141.    §  222. 
Spooner  v.  Fletcher,  3  Vt  133.   §  422. 
Sprague   v.    BirdsaU,    2    Cow.    419. 

§366. 
Sprecher  v.  Wakeley,   11  Wis.  432. 

§476. 
Spring  Sti-eet,  Ee,   112  Pa  St  258. 

§204. 
Spring  V.  CoUector,  78  EL  101.  §§  223, 

267. 
Springfield  v.  Commissioners,  6  Pick. 
501.    §  165. 

^  Conn.   R   R   Co.  4  Cush.  63. 
§388. 
Springfield  Bank  v.  Merrick,  14  Mass. 

322.     §  336.  ' 
Sprmg  Valley  Wat  Works  v.  San 

Mateo  W.  Works,  64  Cai   123. 

§387. 
Bprott  V.  United  States,  20  WaE  459 ; 

8  Ct  of  CI.  499.     §  20. 
Sprowl  V.   Lawrence,    33   Ala.    674. 

g§  246,  302,  410,  418,  437. 
Squires'  Case,  12  Abb.  Pr.  38.    §  232. 
Staats  V,  Hudson  River  R.  R.  Co.  4 

Abb.  App.  Dec.  287.    §  151. 
Stacy  V.  Vermont,  etc.  R  R  Co.  32 

Vt  551.     §  320. 
Stafford  v.  Bank,  16  How.  135.   §454. 

V.  Canal  &  Banking  Co.  17  How. 
283.    §454. 

V.  His  Creditors,  11  La  Ann.  470. 
§156. 


Stafford  v.  Ingersol,  3  Hill,  38.    §§  202, 
399. 
V.  Mayor,  etc.  7  John.  541.     §  391. 
Stanberry  v.  Nelson,  Wright  (Ohio), 

766.     §  306. 
Stange    v,   Dubuque,  62  Iowa,  303. 

§§  129,  130. 
Stemland  v.  Hopkins,  9  M  &  W.  178. 

§267. 
Stanley  v.  Bolt,  5  Wall  119.    g  194 
V.  Wharton,  9  Price,  301.    §§  208, 
360. 
Staples  V.  Fox,  45  Miss.  667.     §§  392, 

398. 
Starin  v.  Town  of  Genoa,  23  N.  Y. 

439.    §75. 
Starr  v.  Camden,  etc.  R  R  Co.  24 

N.  J.  L.  592.    §  388. 
State  V.  Absence,  4  Porter,  397.   §  334 
V.  Acufif,  6  Mo.  54    §  260. 
V.  Adams,  64  N.  H.  243.    §  402. 
V.  Adams,  51  N.  H.  568.    §  231. 
V.  Addington,  2  Bailey,  516.  §  166. 
V.  Ah  Sam,  15  Nev.  27.    §  86. 
V.  Alexander,  14  Rich.  247.  §§  138, 

142,  143. 
V.  Algood,  87  Tenn.  163.    §§  132, 

330. 
V.  Andrews,  20  Tex.  230.    §§  133, 

137. 
V.  Arlin,  39  N.  H.  179.     §  470. 
V.  Atherton,  19  Nev.  332.     §  9a 
V.  Atkins,  35  Ga  319.    §  239. 
V.  Atft-ood,  11  Wis.  422.    §  206. 
V.  Auditor,  41  Mo.  25.     §  206. 
V.  Aulman,  76  Iowa,  624.     §  97. 
V.  Babcock,  21  Neb.  599.    §  28a 
V.  Baker,  47  Miss.  95.     §  355. 
V.  Baldwin,  45  Conn,  134    §§  133, 

134  137,  16a 
V.  Baltimore  County,  29  Md.  516. 

§§  120,  198. 
V.  Baltimore,  etc.   R   R   Co.  12 

Gill  &  J.  399.     §^  283,  288. 
V.  Bank,  1  S.  C.  6a     §  478. 
V.  Bank,  12  Rich.  L.  609.    §§  104, 

166. 
V.  Bank  of  ]\Id.  6  Gill  &  J.  205. 
g385. 


CASES   CITED. 


CV 


St&te  V.  Bank  of  Newbern,  1  Dev.  & 

Bat  Eq.  219.     §  381. 
V.  Bank  of  Smj-rna,  3  Hoiist  99. 

§364. 
V.  Barbee,  3  IncL  258.     §  117. 
V.  Barker,  4  Kan.  379.     §  472. 
V.  Barrow,  30  La  An^  pt  1,  657. 

§147. 
V.  Bartlett  30  Me.  132.     §  355. 
V.  Bavim,  33  La.  Ann.  981.   §§  96, 

103. 
V.  Beasley,  5  Mo.  91.    §  260. 
V.  BeU,  3  Ired,  L.  506.    §  288. 
V.  Belvidere,    25   N.    J.    L.  563. 

§157. 
V.  Beneke,  9  Iowa,  203.     §  67. 
V.  Benjamin,     2     Oregon,     125. 

§143. 
V.  Bentley,  23  N.  J.  L.  532.   §  378. 
V.  Bergen,  34  N.  J.  L.  438.     §  198. 
V.  Berry,  25  Mo.  355.     §  206. 
V.  Berry,  12  Iowa,  58.     §  202. 
V.  Beswick,  13  R  L  211.    §  154 
V.  Blair,  32  Ind.  313.     §  429. 
V,  Board,  etc.  26  Ind.  522.    §§  86, 

92. 
V.  Boogher,  71  Mo.  631.    §  142. 
V,  Bosworth,  13  Vt  402.     §  312. 
V.  Bowen,  16  Kan.  475.    §  299. 
V.  Bowei-s,  14  Ind.  195.     §§  88,  92. 
V.  Boyd,  19  Nev,  43.     §  129. 
V.  Boyd,  3  GiU  &  J.  374    §§  411, 

423. 
V.  Boyle,  10  Kan.  113.    §§    167, 

226. 
V.  Bradford,  36  Ga.  422.    §§  206, 

463,  481. 
V.  Brandt,  41  Iowa,  593.    §§  2p2, 

260. 
V.  Branin,  23  N.  J.  L.  484.     §  157. 
V.  Brassfield,  81  Mo.  151.   §§  84, 98. 
V.  Brewer,    22    La.     Ann.    273. 

§§  166,  255,  256. 
'v.  Brewster,  3  Am.  &  Eng.  Corp. 

Gas.  551.     §  133. 
T.  Brewster,     39    Oliio    St    653. 

§g  123,  132. 
V.  Brookover,    22    W.    Va.    214. 

§165. 


State  V.  Brown,  3  Heisk.  1.    §  267. 
V.  Brown,  31  Me.  522.    §  354 
V.  Brown,  19  Fla.  563.     §  169. 
V.  Brown,  30  La  Ann.  78.    §  482. 
V.  Bruner,     17     Mo.     App.    274 

§306. 
V.  Buchanan  Co.  Ct  41  Mo.  254 

§  419. 
V.  Buckley,  54  Ala  599.     §§  41, 

43,  48. 
V.  Buckman,  18  Fla  267.    §§  236, 

237. 
V.  Burnett,  6  Heisk.  186.  §  124 
V.  Burton,  11  Wis.  50.     §  137. 
V.  Cain,  8  W.  Va  720.     §  135. 
V.  California  ^lio.   Co.   15   Nev. 

234.    §  122. 
V.  Campbell,  44  Wis.  529.    §§  134, 

154  166. 
V.  Canterbmy,    28    N.     H.    195. 

§§231,  402. 
V.  Canton,  43  Mo.  48.    §  349. 
V.  Carney,  20  Iowa,  82.    §  449. 
V.  Cassidy,  22  Minn.  325.     §§  83, 

88. 
V.  Cazeau,  8  La  Ann.  109.  §§  210, 

212,  213. 
T.  Chamberlin,  37  N.  J.  L.  38& 

§174 
V.  Chambers,  93  N.  C.  600.  §§  193, 

198. 
v.  Chase,  5  H.  &  J.  303.    §§  310, 

311. 
V.  Chase,  Governor,  5  Ohio  St 

528.    §432. 
V.  Cincinnati,  19  Ohio,  197.  §  137. 
V.  Cincinnati   Gas  Liglit  Co.  18 

Ohio   St    262.    §§  378,   383, 

384. 
T.  Clark,  5  Dutcher,  96.     §  2ia 
T.  Clark,  57  Mo.  25.     §  255. 
V.  Clark,  54  Mo.  216.    ^§  153,  28a 
V.  Clarke,  54  Mo.  17.     §§  169,  170, 

235. 
V.  Clarksville,  etc.  Co.   2  Sneed, 

88.     Jji;  241,  247,  254. 
V.  Clevelaml.  80  Mo.  108.     §  306. 
T.  Click,  2  Ala  26.     §§  104,   448, 

452. 


CVl 


CASES    CITED. 


'* 


State  V.  Clinton,  37  La,  Ann.  40.   §§  87, 

94 
V.  Clinton,  28  La.  Ann.  201.  §  170. 
V.  Cloksey,  5  Sneed,  482.     §  300. 
V.  Cole,  2  McCord,  117.     §  454. 
V.  Commissioner,  37  N.  J.  L.  240. 

§140. 
V.  Commissioners,  41   Kan.  630. 

§90. 
V.  Commissioners,  5  Ohio  St.  497. 

§176. 
V.  Commissioners,  38  N.  J.  L.  320. 

§§  r~K  180. 

V.  Commissioners,  etc.  4  Wis.  414. 

§472. 
V.  Commissioners,   etc.    34  Wis. 

162.     ij  240. 
V.  Commissioner  of  R.  R.  Taxa- 
tion, 37  N.  J.  L.  228.     §  287. 
V.  Conklin,  34  Wis.  21.     §  267. 
V.  Conkling,  19  Cal.  501.     §§  154, 

168,  204. 
V.  Cook,  20  Ohio  St.  252.    §  811. 
V.  Cooke,  24  Minn.  247.     §§  72, 75. 
V.  Cooler,  8  S.  E.  Rep.  692.  §§  469, 

470. 
V.  Cooper,  5  Blackf.  258.    §  331. 
V.  Copeland,  3  R.  L  33.  §§  67, 180. 
V.  Cordoza,  5  S.  C.  297.     §  330. 
V.  Corson,  59  Me.  137.    §  469. 
V.  Corwin,   4    Mo.  609.,   §§  204, 

325. 
V.  County  Commissioners,  17  Nev. 

96.    §g  88,  97. 
V.  Countj'  Commissioners,  29  Md. 

516.     §  449. 
V.  County    Comt,    50    Mo.    317. 

§117. 
V.  County    Court,    53    Mo.    128. 

§137. 
V.  Coimty   Judge,  2  Iowa,  282. 

§§  78,  82,  87,  88. 
V.  County  of  Dorsey,  28  Ark.  378. 

§  183. 
V.  Court  Com.  Pleas,  36  N.  J.  L. 

72.     g  75. 
V.  Courtupy.  73  Iowa,  619.    §  155. 
V.  Covington,    etc.    29  Oliio   St. 

102.    §§  80,  81. 


State  V.  Craig,  23  Ind.  185,     §  142. 
V.  Cram,  16  Wis.  343.     §  286. 
V.  Crawford,  11  Kan.  32.    §§  167, 

22G. 
V.  Crawford,  35  Ark.  237.     §§  41, 

49. 
V.  Crawley,    33    La.    Ann.    782. 

g§  103,  170. 
V.  Cross,    4    Jones    (N.   C),  421. 

§166. 
V.  Cross,  68  Iowa,  180.     §  184 
V.  Cross,  38  Kan.  696.     §  135. 
V.  Cumberland  &  Penn.  R  R  Co. 

40  Md.  22.     §  122. 
V.  Custer,  65  N.  C.  339.     §  252, 
V.  Daley,  29  Conn.  272.     §§  142, 

164,  166. 
V.  Dalon,    35      La.     Ann.     1141. 

§§  103,  120,  170. 
V.  Daniel,  28  La.  Ann.  38.     §  88. 
V,  Davis,  22  La,  Ann.  77,     §  257. 
V.  Davis,  70  Md.  237.    §  160. 
V.  De  Bar,  58  Mo.  395.     §  157. 
V.  De  Gress,  53  Tex,  387,    §  322. 
V,  Desliler,  25  N,  J,  L.  177,    §  248. 
V,  Dews,  R  M,  Charlt  400.     §§  5, 

11. 
V.  Dexter,  10  R.  L  341.    §  5. 
V.  Doherty,  60  Me.  504     §  206. 
V.  Dombaugh,  20  Ohio  St.   173. 

§331. 
V.  Donehey,  8  Iowa,  396.    §  109. 
V.  Douglass,    33    N,    J,    L.    363. 

§225, 
V.  Douglass,  5  Sneed,  608.  §§  222, 

300. 
V.  Dousman,  28  Wis.  541.  §§  118, 
/  130,  176. 

V.  Dudley,  2  Oliio  St.  607.    §  151. 
V.  Dulfy,  7  Nev.  342.     §§  119, 120. 
V,  Duke,  42  Tex.  455,     §  173, 
V,  Duueau,  16  Lea,  79.    §  143. 
V.  Dunning,  9  Incl  20,     §§  108, 

1C9,  345, 
V.  Easton,  etc.  R.  R  Co.  36  N.  J. 

L.  181.     §  388. 
V.  EUzabeth,    40    N.    J.    L.   27a 

§170. 
V.  Elvins,  32  N.  J.  L.  362.     §  Sa 


CASES   CITED. 


evil 


State  V.  Engle,  21  N.  J.  L.  347.    §  233. 
V.  Eskridge,  1  Swan,  413.   §g  223, 

328,  343. 
V.  Exuicios,    83    La.    Ann.    253. 

§§  103,  170. 
V.  Fagau,  22  La  Ann.  545.   §§  55, 

330. 
V.  Fiala,  47  Mo.  320.    §  157. 
V.  Field,  17  Mo.  529.     §  69. 
V.  Fields,  2  BaUey,  554.     §  332. 
V.  Fitzporter,   17  Mo.   App.  271. 

§  157. 
V.  Fletcher,  5  N.  H.  257.     §  333. 
V.  Fletcher,  1  R  L  193.     §  166. 
V.  Foote,  11  Wis.  14.     §§  54,  106, 

109. 
V.  Forney,  21  Neb.  223.    §  267. 
V.  Francis,  26  Kan.  724     g§  41, 

43,  46,  48. 
V.  Frederick,  45  Ark.  347.    §  306. 
V.  Gaines,  1  Lea,  734.    §  135. 
V.  Garland,  7  Ired.  L.  48.     §  333. 
V.  Garrett,     29    La.     Ann.     637. 

g§  87,  88,  89,  101. 
V.  Geiger,  65  Mo.  306.     §  135. 
V.  Gillick,  7  Iowa,  287.     §  449. 
V.  Gilman,  33  W.  Va.  146.    §  370. 
V.  Glenn,  18  Nev.  39.    §§  35,  51. 
V.  Goetze,  22  Wis.  363.    §§  158, 

217,  222. 
V.  Goyette,  11  R.  L  592.    §  303. 
V.  Grady,  34  Conn.  118.    §§  142, 

143. 
V.  Graham,  16  Neb.  74.    §  129. 
V.  Graham,  38  Ark.  519.     §  350. 
V.  Guniber,  37  Wis.  298.     §§  134, 

142,  166,  167. 
V.  Gupton,  8  Ired.  271.     §  254. 
V.  Haygood,  13  S.  C.  46.     §§  41, 

45. 
V.  Hall,  2  Bailey,  151.    g  356. 
V.  Hallock,  14  Nev.  202.     §  137. 
V.  Hainbliu,   4    Rich.   (N.   S.)    1. 

t5§  142.  143. 
V.  Hammer,    42    N.    J.    L.    435. 

§127. 
V.  Hammett,  7  Ark.  492.    §  298. 
V.  Hanger,  5  Ark.  412.     S  HO- 
V.  Harkness,  1  Brev.  276.     g  223. 


State  V.Harris,  17  Ohio  St  608.  §§447, 

449. 
V.  Harrison,    11    La.    Ann.    722. 

§98. 
V.  Haskell  Co.  40  Kan.  65.     §  94 
V.  Hastings,  24  Minn.  78.     §§  41, 

40.  183. 
V.  Hayes,  78  Mo.  307.     §  303. 
V.  Haynes,  72  Mo.  377.     §  345. 
V.  Hays,  49  Mo.  604    §  330. 
V.  Heidorn,  74  Mo.  410.    §  161. 
V.  Helmes,3  N.  J.  L.  *1050.  §  198. 
V.  Heman,   70  Mo.  441.    §§  235, 

260. 
V.  Herrmann,  75  Mo.  340.     g  129. 
V.  Hey  ward,  3  Rich.  389.    §  473. 
V.  HUmantel.  21  Wis.  566.     §  459. 
V.  Hinchman,    27     Pa.    St    479. 

§294 
V.  Hitchcock,  1  Kan.  186.     §§  55, 

117. 
V.  Hoagland,  51  N.J.  L.  62.  §  127. 
V.  Holman,  3  McCord,  306.  §  279. 
V.  Horner.  34  ^Id.  569.     §  449. 
V.  Horsey,  14  Ind.  185.    §§   142, 

143. 
V.  Hudson  County,  37  N.  J.  K  12. 

§67. 
V.  Hurds,   19    Neb.   317.    §§103, 

170. 
V.  IngersoU,  17  Wis.  631.    §§  133, 

137,  154  166. 
V.  Intoxicating  Liquoi-s,  19  AtL 

Rep.  913.     §  332. 
V.  Intoxicating  Liquors,  73  Ma 

278.     §  296. 
V.  Jackson,  39  ^le.  291.     §  193. 
V.  Jaeger,  63  Mo.  403.     §  325. 
V.  Jeruigan,  3  Murph.  18.     §  259. 
V.  Johnson,  26  Ark.  281.     §  66. 
V.  Jones,  22  Ark.  331.     §  397. 
V.  Judge,  12  La.  Ann.  777.  §§  240, 

300. 
V.  Judge,  14  La,  Ann.  486.  §§  109, 

137. 
V.  Judge,  29  La.  Ann.  223.     §  26. 
V.  Judge,  37  La.  Ann.  578.   §  155. 
V.  Judge  Bermudez,  12  La.  353. 

§463. 


CVIU 


CASES    CITED. 


State  V.  Judge  of  St  Louis  P.  Ct.  38 

Mo.  529.    §  157. 
V.  Judges,  21  Ohio  St.  1.     §§  121, 

122,  193,  198. 
V.  Kalb,  50  Wis.  178.    §  473. 
V.  Kantler,  33  Minn.  69.     §  169. 
V.  Keith,  63  N.  C.  140.     §  467. 
V.  KeUey,  34  N.  J.  L.  75.     g§  140, 

147,  154. 
V.  Kellogg,  41  Mo.  16.     §  153. 
V.  Kempf,  69  Wis.  470.     §  384 
V.  King,  12  La.  Ann.  593.     g  166. 
V.  King,  44  Mo.  283.     §g  218,  223, 

244. 
V.  Kinne,  41  N.  H.  238.     §  333. 
V.  Ki-ebs,  64  N.  C.  604.     §  381. 
V.  Lancaster  Co.  17  Neb.  87.   §  103. 
V.  Lasater,  9  Baxt  584.     §§  78, 

82,  88. 
V.  Lean,  9  Wis.  284    §§  110,  193. 
V.  Learned,  47  Me.  426.     §  469. 
V.  Lewis,  5  Mo.  A  pp.  465.     §  159. 
V.  Liedtke,  9  Neb.  462.    §  45. 
V.  Little  Rock,  etc.  R.  R.  Co.  31 

Ark.  701.     §  41. 
V.  Loftin,  2  Dev.  &  Bat.  31.  §  325. 
V.  Long,  78  N.  C.  571.     §  166. 
V.  Lorell,  23  Iowa,  304    §§  350, 

351. 
V.  Loyd,  3  Ind.  659.    §  166. 
V.  McCann,  4  Lea,  1.    §§  80,  103. 
V.  McCann,    21     Oliio     St     198. 

§119. 
V.  McConnell,  3  Lea,  332.    §§  46, 

88,  93,  96,  97. 
V.  McCoy,  2  Speers,  711.    §  252. 
V.  McCracken,  42  Tex.  383.    §§  80, 

260. 
V.  Mace,  5  Md.  337.    §§  253,  397. 
V.  McFetridge,  64  Wis.  130.  §  364. 
V.  McGarry,  21  Wis.  496.     §  273. 
V.  McLean,  9  Wis.  292.     §  455. 
v.  McLeUand,  18  Neb.  236.    §§  41, 

43,  46,  294 
V.Macon    Co.    Ct    41    Mo.  453. 

§§  137,  202. 
V.  Madison,  15  Wis.  30.     g  475. 
V.  Madson,  45  N.  W.  Rep.   856. 

§101. 


State  V.  Mann,  21  Wis.  684    §  240. 
V.  Manning,  14  Tex.  602.    §  469. 
V.  Marsh,  37  Ark.  356.     §  169. 
V.  Marshall,  13  Tex.  55.     §  356. 
V.  Massey,  103  N.  C.  356.    §  142. 
V.  ]\Tayhew,  2  Gill,  487.     §  307. 
V.  Maynard,  14  IlL  419.     §  395. 
V.  M;iyor,  5  Port  279.     §  380. 
V.  Mayor,  35  N.  J.  L.  196.    §§  239, 

240,  247. 
V.  Milbum,  9  Gill,  105.     §  333. 
V.  Miles,  2    Nott   &  McCord,  1. 

§252. 
V.  Miller,  58  Ind.  399.     §  143. 
V.  Miller,  30  N.  J.  L.  368.    §  159. 
V.  Miller,  23  Wis.  634     §  342. 
V.  Miller,  45  Mo.  495.    §§  76,  80, 

82,  88,  92. 
V.  Mills,  34  N.  J.  L.  177.     §§  157, 

364. 
V.  Mister,  5  Md.  11.     §  283. 
V.  Mitchell,  31  Ohio  St  592.  §  129. 
v.  IVIitchell,  5  Ired.  L.  350.    §  252. 
V.  Montclair  R'y  Co.  35  N.  J.  L. 

328.     §  388. 
V.  Mooty,  3  HiU  (S.  C),  187.  §  283. 
V.  Morrill,  16  Ark.  384.     §  342. 
V.  Morris  Canal,  etc.  Co.  13  N.  J. 

L.  192.    §  421. 
V.  Morrow,  26  Mo.  131.     §§  147, 

327. 
V.  Myers,  10  Iowa,  448.     §  252. 
V.  Newark,  28  N.  J.  L.  491.  §  140. 
V.  Newark,  3  Dutch.  185.     §  206. 
V.  Newark,  25  N.  J.  L  399.    §  164 
V.  NcAvark,  34  N.  J.  L.  236.  ^  88, 

101. 
V.  Newton,  59  Ind.  173.     §§  169, 

170. 
V.  Nicholls,    30    La.    Ann.    980. 

§300. 
V.  Northern,  etc.  R'y  Co.  18  Md. 

193.     §  397. 
V.  Norton,  23  N.  J.  L.  33.    §§  139, 

290. 
V.  Norwood,  12  Md.  195.    §§  164, 

463. 
V.  Noyes,  47  Me.  189.   §§  345,  473. 
V.  Noyes,  30  N.  H,  279.     §  75. 


CASES   CITED. 


ClI 


State  V.  Nutt,  PliU.  L.  20.    §  166. 

State  V.  Rollins,  8  N.  H.  550.    §§  15, 

V.  O'Conner,   13    La.   Ann.    486. 

ICH. 

§166. 

V.  Rorie,  23  Ark.  726.     g  352. 

V.  O'NeiU,  24  Wis.  149.     §§  73,  75. 

V.  Rosen-stock,  11  Nev.  128.  §  170. 

V.  Oskins,  28  Ind.  364.     g  229. 

V.  Ross,  49  Mo.  416.     gg  167,  226. 

V.  Parker,  91  N.  C.  650.     §  333. 

V.  Russell,  17  Mo.  Apj).  16.  g  306. 

V.  Parker,  20  Vt.  362.    §g  67,  73. 

V.  Ryan,  13  Minn.  370.     g  469. 

V.  Parkhm-st,    9    N.    J.    L    427. 

T.  S.  &  S.  Orphan  Home,  37  Ohio 

§169. 

St  275.     §231. 

V.  Partlow,  91  N.  C.  550.    §  261. 

V.  Schnierle,    5    Rich.    L.     299. 

V.  Patterson,     2     IrecL     L.    346. 

gill. 

§§  184,  189. 

V.  Scliool  Board  Fimd,  4    Karu 

V.  Pearcy,  44  Mo.  159.     §  159. 

261.     §109. 

V.  Persinger,  76  Mo.  346.    §  170. 

V.  Scudder,  39  N.  J.  L.  203.  g  206. 

V.  Pierce,  14  Ind.  302.  §§  142, 143. 

V.  Seaborn,  4  Dev.  305.     §  154 

T.  Pierson,  44  Ark.  265.    §  289. 

V.  Severance,  49  Mo.  401.    §§  157, 

V.  Pinckney,  22  S.  C.  484.     §  464. 

311,  312. 

V.  Piper,  17  Neb.  614.     §  119. 

v.  Shaffer,  21  Iowa,  486.    §  226. 

V.  Pitts,  58  Mo.  556.     §  449. 

V.  Showers,  34  Kan.  269.    §  325. 

V.  Piatt,  2  S.  C.  150.    §§  41, 43,  45, 

V.  Silver,  9  Nev.  227.    g§  78,  88, 

49,  182. 

102,  103. 

V.  Pollard,  6  R.  I.  290.     §  155. 

T.  Sinks,  42  Ohio  St  345.    §§  176, 

V.  Pool,  74  N.  C.  402.    §j^  252,  260. 

180. 

V.  Powder  Mfg.  Co.  50  N.J.  L.  75. 

V.  Slaughter,  70  Mo.  484.    §  16& 

§132. 

v.  Slotter,  38  Iowa,  321.     §  275. 

V.  Powei-s,  36  Conn.  77.    §§  348, 

V.  SmaUs,  11  S.  C.  262.     g§  41,  44 

410,  416. 

V.  Smith,  5  Hvmiph.  394     §  247. 

T.  Powers,  38  Ohio  St  54.    §§  117, 

V.  Smith,  38  Conn.  397.      g§  206, 

123. 

482. 

V.  Poydras,  9  La.  Ann.  65.    g  246. 

V.  Smith,  67  Me.  328.     gg  139,  203. 

V.  Preston,  34  Wis.  675.     §  253. 

449. 

V.  Price,  12  G.  &  J.  260.     §  306. 

V.  Smith,  52  Wis.  134.    §  253. 

V.  Pugh,  43  Ohio  St.  98.     §  180. 

V.  Smith,  46  Iowa,  670.      §§  252, 

V.  Rackley,  2  Biackf.  249.     §  153. 

255. 

V.  Ranson,  73  Mo.  78.     §§  78,  82. 

V.  Smith,  44  Tex.  443.      gg  142, 

V.  Rauscher,  1  Lea,  96.     §  124 

143. 

V.  Ray,  97  N.  C.  510.     §  298. 

T.  Smith,  35  Minn.  257.     g  101. 

V.  Reader,  60  Iowa,  527.    §  295. 

T.  Sneed,25Tex.(Supp.)66.  §467. 

V.  Reed,  4  H.  &  McH.  10.     g  213. 

V.  Solomon.  33  Ind.  450.     g  279. 

V.  Reitz,  62  Ind.  159.     g§  124, 127. 

V.  Solomons,   3    Hill   (S.   C),  96w 

V.  Richmond,   etc.   R   R  Co.  73 

gg  208,  467,  482. 

N.  C.  527.     g  473. 

v.  Sorrells,  15  Ark.  664.     g  331. 

T.  Riordan,  24  Wis.  484   §g  117, 

V.  Spaude,  37  Minn.  322.     g  125. 

118,  130. 

V.  Squires.   26  Iowa,  345.      gg  93, 

V.  Robertson,  41  Kan.  200.    g  330. 

117,  129,  130,480,483. 

V.  Robinson,  1  Kan.  17.     §331. 

V.  Standley.  76  Iowa,  215.     §  12a 

V.  Robinson,  42  Minn.  107.    g  365. 

V.  Stark,  18  Fla.  255.     gg  175, 176L 

V.  Rogers.   10  Nev.   250.     §§  65, 

V.  State  Auditor,  32  La.  Ann.  8flt 

154 

§92. 

ex 


CASES    CITED. 


State  V.  State  Bank,  5  InA  356.    §  453. 
V.  Stephensou,    2     Bailey,    334. 

§§  208,  210,  234,  242. 
V.  Sterling,  8  Mo.  697.     §  473. 
V.  Stiuson,  17  Me.  154.     §  152. 
V.  StoU,   17  Wall.   425.     g§    154, 

157. 
V.  Stumpf,  23  Wis.  630.     §  459. 
V.  Stunkle,  41  Kan.  456.     §  95. 
V.  Sturgess,  10  Oregon,  58.   §  157. 
V.  Stiidt,  31  Kan.  245.     §  154. 
V.  SuUivan,  14  Rich.  L.  281.   §  469. 
V.  Supervisors,      25      Wis.     339. 

§§  117,  118,  130. 
V.  Supervisors,  62  Wis.  376.  §  179. 
V.  Swift,  10  Nev.  176.     §§  35, 183. 
V.  Swisher,  17  Tex.  441.     §  67. 
V.  Swope,  7  Ind.  91.     §  333. 
V.  Taylor,  35  N.  J.  L.  184.     §  362. 
V.  Tliompson,   10  La.   Ann.  122. 

§314 
V.  Tombeckbee  Bank,  2  Stew.  30. 

§473. 
V.  Tootle,  2  Harr.  541.    §  298. 
V.  Towle,  48  N.  H.  97.     §  438. 
V.  Town  of  Union,  33  N.  J.  L. 

350.    §§  78,  82,  86,  87,  88,  483, 

484 
V.  Treasurer,  41  Mo.  16.    §  157. 
V.  Trenton,  38  N.  J.  L.  64  g§  217, 

225,  325. 
V.  Timme,  54  Wis.  318.     §  229. 
V.  Troutman,  72  N.  C.  551.   §  146. 
V.  Tucker,  46  Ind.  355.     §§  82,  85, 

96,  97,  117, 
V.  Turnpike  Co.  16  Ohio  St  308. 

§§  240,  246,  260,  267. 
V.  Tuttle,  53  Wis.  45.  §g  169, 170. 
V.  Twitty,  2  Hawkes,  441.  §  190. 
V.  Union  Bank,  9  Yerg.  164  §  336. 
V.  Upchurch,  9  Ired.  454  §  208. 
V.  Van    Stralen,     45    Wis.     437. 

§§  134  166. 
V.  Vicksbuig,  etc.   R.  R.   Co.  51 

Miss.  361.     §  237. 
V.  Wapello    Co.    13    Iowa,    388. 

§314 
V.  Wardens,    23    La.    Ann.    720. 

§§  95,  102,  103. 


State  V.  Warren,  28  Md.  338.    §  164 
V.  Washington  Social  L.  Co.  11 

Oliio,  96.    §  385. 
V,  Washoe  Co.  6  Nev.  104    §  238. 
V.  Watts,  23  Ai-k.   304     §§  138. 

143. 
V.  Weigel,  48  Mo.  29.  §§  315,  239, 

246. 
V.  Weir,  33  Iowa,  134    §§  67,  72. 
V.  Welch,  21  Minn.  22.     §  193. 
V.  Wheeler,  64  Me.  532.    §  115. 
V.  Wheeler,  25  Conn.  290.  §§  169, 

170. 
v.  Whetstone,  13  La.   Ann.  376. 

§§  208,  290. 
V.  Whisner,  35  Kan.  271.     §  56. 
V.  Whitener,  93  N.  C.  590.     §  253. 
V.  Whitworth,  8  Lea,  594     §§  88, 

93,  95. 
V.  Whitworth,  8  Port.  (Ala.)  434 

§§  142,  154 
V.  Wilbor,  1  R.  I.  199.    §  138. 
V.  Wilcox,  42  Conn.  364  §§  72, 75. 
V.  Wilcox,  45  Mo.  458.   §§  67, 120, 

124,  125,  127. 
V.  Wilcox,  3  Yerg.  278.     §  349. 
V.  WiUiams,  5  Wis.  308.    §  298. 
V.  WiUiams,  13  S.  C.  558.    §  288. 
V.  WiUiams,  8  Ind.  191.    §  221. 
v.  WUliams,  2  Stiob.  474    §  379. 
V.  WilUs,  66  Mo.  131.     §  470. 
V.  WUmington,  etc.  R.  R.  Co.  74 

N.  C.  143.     §  206. 
V.  Wilson,  43  N.  H.  419.     §  154 
V.  WUson,  48  N.  H.  398.     §  469. 
V.  WUson,  7  Ind.  516.     §  170. 
V.  Wilson,  12  Lea,  246.   §§  88, 169. 
V.  WUtz,  11  La.  Ann.  439.  §§  126, 

236,  238,  322. 
V.  Wise,  7  Ind.  645.     §  306. 
V.  Wish,  15  Neb.  448.     §§  134, 137, 

138,  142,  167. 
V.  Wolfarth,      42      Conn.      155w 

§206. 
V.  Woodson,  41  Mo.  227.     §  394 
V.  YeweU,  63  Md.  120.     §  138. 
V.  Young,  47  Ind.  150.     §§  85,  92, 

103.      " 
V.  Young,  3  Kan.  445.     §  344 


CASES    CITED. 


CXI 


State  Bank  v.  Cooper,  2  Yerg,  599. 
§§  5,  119,  124. 
V.  Knoop,  16  How.  369.     ^'g  472, 

473,  480. 

V.  Plaiulield  Bank,  34  N.  J.  Eq. 

450.     §  13. 

State  Board  of  Assessors  v.  Central 

R.  R  Co.  48  N.  J.  K  146.     §  122. 

State  Lime,  etc.  Co.'s  Appeal,  77  Pa. 

SL  429.     §§  88,  101. 
State  Lottery  Co.  v.  Richovix,  28  La. 

Ann.  743.     §§  31,  33. 
Stay  ton  v.  Hulings,  7  Ind.  144.     §  459. 
Steamboat  Co.  v.  Collector,  18  Wall 

478.    §  137. 
Steamboat    Farmer   v.   McCraw,  31 

Ala,  659.     §  206. 
Steamboat  Northern  Indiana  v.  Jlil- 

liken,  7  Ohio  St.  383.     g  80. 
Steamboat  Ohio  v.  Stmit,  10  Ohio  St 

582.     gg  371,  372. 
Steamer  Mary  Blane  v.  Beehler,  12 

Mo.  477.     §§  111,  112,  114. 
Steamship  Co.  v.  Joliflfe,  2  Wall.  450. 

§§  134,  156. 
Stebbins  v.   Anthony,    5    Colo.   356. 
§§  111,  112,  114. 
V.  State,  22  Tex.  App.  32.   §§  154, 
155. 
Steckert  v.  East  Saginaw,  22  Mch. 

104.     §  462. 
Steele  v.  Midland  R  Co.,  L.  R  1  Ch. 
282.    §  300. 
V.Steele,    64   Ala.    438.     §§480, 

481. 
V.  Thompson,  42  Mich.  596.  §  377. 
Steers  v.  Lashley,  6  T.  R  61.     §  336. 
Stein  V.  Ashby,  30  Ala.  363.     §  320. 
V.  Leeper,  78  Ala.  517.    g§  41,  48, 
45,  78,  86,  91. 
Steiner  v.  Coxe,  4  Pa.  St  13.     §  311. 
Stephen  v.  State,  11  Ga.  225.     §  306. 
Stephens    v.    Ballon,    27    Kan.    594. 
§§  137,  138,  151. 
V.  Robinson,  2  Cromp.  &  J.  209. 

§335. 
V.  Watson,  1  Salk.  45.     §  325. 
Stephens  Co.  v.  R  R  Co.  88  N.  J.  L. 
229.    §  198. 


Stephenson    v.   Doe,  8  Blackf.   508. 
§§  165,  193,  424. 

V.  Higginson,   3    H.   of    L.   Cas. 
638.     §§  219,  254. 

V.  Osborne,  41  Miss.  119.     §  164 
Stetson  V.   Kemi)ton,   18  Mass.   272. 

§380. 
Stevens    v.    Andrews,    31    Mo.    205. 
§478. 

V.  Bomar,  9  Humph.  546.     §  295. 

V.  Brown,  20  W.  Va.  450.     §  12. 

V.  Cheney,  36  Hun,  1.     §  873. 

V.  Fassett,  27  Me.  266.     §  234. 

V.  Gourley,   7    C.   B.   (N.   S.)  99. 
§459. 

V.  Ross,  1  Cal.  94.    §  388. 

V.  State,  2  Ark.  291.     §  370. 
Steward  v.  Greaves,  10  M.  &  W.  712. 

§§  145,  152,  202,  204. 
Stewart  v.  Commonwealth,  10  Watts, 
307.     §  367. 

V.  Davidson,  10  Sm.   &  M.  35L 
§480. 

V.  Griffith,  33  Mo.  13.     §  194 

V.  Keemle,  4  S.  &  R  72.    §  324. 

V.  Stringer,  41  Mo.  400.     §§  290, 
394. 

V.  Swanzy,  23  Miss.  502.     §  190. 
Stickworth,  Estate   of,   7    Nev.   22a 

§164 
Stief  V.  Hart,  1  N.  Y.  20.     §§  341,  343. 
Stiefel  V.  Marj-land  Institute,  61  Md, 

144     §§  87,  170. 
Stiles  V.  Easley,  51  111.  275.    §  368. 
Stillman  v.  Isham,  11  Conn.  123.  §  42a 
Stimpson  v.  Pond.  2  Curtis,  502.  §  325. 
Stine  V.  Bennett  18  Minn.  153.  §§107, 

108,  206,  345. 
Stingle  V.  Nevel,  9  Oregon,  62.    §  133. 
Stinson  v.  Smith,  8  Minn.  366.     §  57. 
Stirman  v.  State,  21  Tex.  734.     §  154 
Stockett  V.  Bird,  18  Md.  484.     §g  153, 

158,  159,  215,  216,  428. 
Stocking    V.    Hunt     3    Denio,    274 

§§  164,  476. 
Stockle  V.  Silsbee,  41  Mich.  616.  §  lOa 
Stoddard  v.  Sloan,  65  Iowa,  680.  §  29a 
Stoever  v.  Immell,  1  Watts,  25a   §§  11, 

105,  106. 


cxu 


CASES   CITED. 


Stokes    V.    Macken,    63    Barb.     145. 
g§  181,  184,  189. 

V.  People,  53  N.  Y.  164.    §  469. 

V.  Rodman,  5  R  I.  405.     §  206. 
Stone  V.  Bassett,  4  Minn.  298.     §  478. 

V.  Dickinson,  5  Allen,  59.     §  377. 

V.  Lannon,  6  Wis.  497.     §  358. 

V.  aiississippi,    101     U.    S.     814. 
§473. 

V.  Stone,  1  R  L  425.     §  275. 

V.  Yeovil,  L.  R  1  C.  R  Div.   691. 
§§  240,  324. 

V.  Wisconsin,  94  U.  S.  181.   §  185. 
Storm  V.   Cotzhausen,   38  Wis.  139. 

g283. 
Story  V.  Furman,  25  N.  Y.  214.  §§474, 

476. 
Stougliton    V.    Baker,  4    Mass.   522. 

^  333. 
Stourbridge    Canal    v.   Wheeley,    2 

Barn.  &  Ad.  792.     §  378. 
Stout  V.  Keyes,  2  Doug.  (Mich.)  184. 

§  184. 
Stowell    V.    Zouch,    1    Plowd.    361. 

§§  222,  253,  290. 
Strader  v.  Graham,  10  How.  82.  §  197. 
Stradling  v.  Morgan,  1  Plowd.  206. 

§204. 
Straight  v.  Crawford,  73  Iowa,  676. 

§138. 
Straus  V.  Eagle  Ins.  Co.  5  Ohio  St  59. 

§381. 
Strauss  v.  Heiss,  48  Md.  292.    §§  110, 

139,  160. 
Street  v.  Commonwealth,  6  Watts  & 

S.  209.    §§  138,  139. 
Streissguth    v.  Reigehnan,   71    Wis. 

212.     §  393. 
Streubel  v.  Milwaukee,  etc.  R.  R  Co. 

12  Wis.  67.     §  164 
Sti-iker  v.  KeUy,  7  Hill,  9.    §§  63, 390, 
452. 

V.  KeUy,  2  Denio,  323.    §  390. 
Strode  v.  Stafford  Justices,  1  Brock. 

162.     §§  215,  239,  241. 
Strong    V.    Birchard,   5    Conn.    357. 
§  251. 

V.  Clem,  12  Ind.  639.     §  206. 

V.  Darling,  9  Ohio,  201.     §  336. 


Strong  V.  Dennis,  13  Ind.  514.     §  206. 

V.  State,  1  Blackf.  193.     §  470. 
Strother  v.  Hutchinson,  4  Bing.  N.  C. 

83.     §  413. 
Stuart  V.  Earl  of  Butte,  3  Ves.  212. 
§§  246,  276,  279. 

V.  KinseUa,  14  Minn.  525.    §§  88, 
103. 

V.  Lau-d,  1  Cranch,  299.  §§  307, 
309,  311. 
Studley  v.  Sturt,  2  Strange,  782.  §  115. 
Stump  V.  Napier,  2  Yerg.  35.  §  184. 
Sturgeon  v.  State,  1  Blackf.  39.  §  325. 
Sturges  V.  Crowninshield,  4  Wheat. 

202.     §§  236,   238,   322,  471,  476, 

478. 
Sturgis  V.  HuU,  48  Vt.  302.     §  206. 
Suche,  In  re,  1  Ch.  Div.  48.    §  206. 
Suckley  v.  Rotchford,  12  Gratt  60. 

§342. 
Suffolk  Bank  v.  Worcester  Bank,  5 

Pick.  106.     §  358. 
Sulhvan's    Api^eal,    77    Pa.   St.   107. 

§272. 
SulUvan  v.  Adams,  3  Gray,  476.  §  137. 

V.  Brewster,  1  E.  D.  Smith,  681. 
§476. 

v.  Hense,  2  Colo.  424.    §  296. 

V.  La  Crosse,  etc.  P.  Co.  10  Minn. 
386.    §  290. 

V.  MitcaKe,  L.  R  5  C.  P.  Div.  455. 
§249. 

V.  Oneida,  61  lU.  242.    §  469. 

V.  People,  122  IlL  385.     §  295. 

V.  People,  15  lU.  233.     §  138. 
Smnner  v.  Miller,  64  N.  C.  688.  §  482. 
Sumter  Co.  v.  Gainesville  Nat.  Bank, 

62  Ala.  464.     §§  174.  180. 
Sunbmy,  etc.  R  R  Co.  v.  Cooper,  33 

Pa.  St.  278.     §  330. 
Sun  Mut  Ins.  Co.  v.  Mayor,  8  N.  Y. 

241 ;  5  Sandf.  10.    §§  78,  88,  95. 
Supervisors   v.    Auditor-General,   65 
Mich.  408.     §  95. 

V.  Auditor-General,  68  Mich.  659. 
§102. 

V.  Board  of  Commissioners,    12 
Minn.  403.     §§  150,  153. 

V.  Briggs,  3  Denio,  173.    §  164. 


CASES    CITED. 


CXIU 


Supervisors  v.  Heenan,  2  ^linn.  330. 
§§  29,  41,  43,  45,  80,  92,  97, 
181,  294. 
V.  Kaiine,  39  Wis.  468.    §  453. 
V.  Lackawaua  I.  &  C.  Co.  93  U.  S. 

619.     §  138. 
V.  People,  25  IlL  181.     §§  46,  96, 

462. 
V.  Schenck,  5  WalL  772.    §  429. 
V.  Stanley,  105  U.  S.  305.     §  171. 
V.  United    States,    4   WalL  446. 

§462. 
V.  United   States,    18    WalL   71. 
§§  185,  319. 
Surgett  V.  Lapice,  8  How.  48.    §§  307, 

308. 
Surlott  V.  Pratt,  3  A.  K.  Marsh.  174 

§184. 
Surtees  v.   Ellison,  9  B.   &   C.  750. 

§162. 
Sussex  Peerage  Case,  10  CL  &  Fin.  85. 

§§  190,  219,  234,  237,  247. 
Sutherland  v.  De  Leon,  1  Tex.  250. 

§§  212,  481,  482. 
Sutterly  v.  Camden  Common  Pleas, 

41  N.  J.  L.  495.     §  127. 
Sutton  V.  Chenault,  18  Ga.  1.    §  480. 
V.  Hays,  17  Ark.  462.     §  286. 
V.  Sutton,  L.  R  22  Ch.  Div.  511. 
§§  213,  233. 
Swan  V.  Blair,  3  CL  &  F.  632.     §  336. 
Swann  v.  Buck,  40  Miss.  268.     §§  34, 
61,  62,   63,  64,  107,  138,  141, 
154,  204,  215,  241. 
V.  Jenkins.  82  Ala  478.     §§  379, 
393. 
Swans,  Case  of,  7  Coke,  82.    §  305. 
Swartwout  v,  Mich.  Cent  R  R  Co. 
24  Mich.  389.    §§  101,  135,  239, 
241. 
Swayze  v.  Britton,  17  Kan.  625.   §  95. 
Swepston    v.   Barton,   39    Ark.   549. 

§450. 
Swett  V.  Sprague,  55  Me,  190.    §  114. 
Swickard    v.    Bailey,    3    Kan.    507. 

§479. 
Swift's  Appeal,  111  Pa.  St  516.    §  324. 
Swift  V.   Applebone,  23  Midi.    252. 
§208. 


Swift  V.  Luce,  27  Ma  285.  §§  234, 431, 
432. 

V.  Newport,  7  Bush,  37.    §§  101, 
136. 

V.  Tyson,  16  Pet  1.     §§  246,  429. 
Swift  Courtney,  etc.   Co.  v.  United 

States,  14  Ct  of  CL  481.    §  309. 
Swigert.  Matter  of,  119  ILL  83.     §  272. 
Swiutiu    V.    Lowry,    37    Minn.    345. 

§  375. 
Sydnor    v,  Gascoigne,   11  Tex.  455. 

§314. 
Sykes  v.  People,  127  HL  117.    §  95. 
Syracuse  Bank  v.  Davis,  16  Barb.  188. 

§164. 
Syracuse  Savings    Bank    v.  Seneca 

Falls,  86  N.  Y.  317.    §  133. 

Tabor  v.  Cook,  15  Mich.  322.   §  332. 
Tackett  v.  Volger,  85  Mo.  480.    §  395. 
Tadlock    v.    Eccles,    20    Tex.    782. 

§§  78,  80. 
Tafova  v.  Garritt,  1  New  Mex.  486. 

§154 
Taggart  v.  McGinn,  14  Pa.  St  155. 

§10. 
Talbot  v.  Seeman,  1  Cranch,  38.  §  190. 
Tallamon  v.  Cardenas,  14  La.  Ann. 

509.     §  168. 
Tallman  v.  Syracuse,  etc.  R  R  Co.  4 

Keyes,  128.    §  442. 
Talmadge  v.  Coal,  etc.  Co.  3  Head, 

337.    §378. 
Tankersley  v.  Richardson,  2  Stewart; 

130.    §  439. 
Tappan  v.   Campbell,  9   Yerg.   436. 

§184. 
Tappen,  Matter  of,  36  How.  Pr.  390. 

§§  87,  102. 
Tarlton  v.  Briscoe,  4  Bibb,  73.    §  184. 

V.  Peggs,  18  Ind.  24.     §  104. 
Tarver  v.  Commissioners'  Court,  17 

Ala.  527.     §  462. 
Tate  V.   Stoltzfoos,   16   S.  &  R   35. 

§483. 
Taunton  v.  St  James,  9  B.  &  C.  831. 

§  222. 
Tayloe    v.    Thompson,    5    Pet    35a 

§319. 


CXIV 


CASES    CITED. 


Taylor  v.  Bank  of  Illinois,  7  T.  B. 

Mon.  576.     §  190. 
V.  Boardman,  25  Vt  581.  g  297. 
V.  Carroll,  145  Mass.  95.    g  373. 
V.  Corbiere,     8    How.     Pr.    385. 

§115. 
V.  Crowland  Gas  Co.  10  Ex.  293. 

§335. 
V.  Graham,  18  La.  Ann.  656.  §  298. 
V.  Keeler,  30  Conn.  324.  §  206. 
V.  Chandler,  9  Heisk.  349.  §  124. 
V.  McGill,  6  Lea,  294.  §§218,411. 
V.  MitcheU,  57  Pa.  St.  209.  §  206. 
V.  Newman,  4  B.  &  S.  89.     §§  210, 

355. 
V.  Oldham  Corporation,  L.  E.  4 

Ch.  Div.  395.   §§  159, 212,  217. 
V.  Pahuer,  31   Cal.  240.     §§  115, 

215,  239,  240,  241. 
V.  Penn.  Co.  78  Ky.  348.     §  14. 
V.  Place,  4  R.  I.  324.     §§  3,  4,  10. 
V.  Porter,  4  Hill,  146.     §  5. 
V.  Eountree,  15  Lea,  725.     §  463. 
V.  Rushing,   2    Stew.   (Ala.)   160. 

§164. 
V.  St  Helens,  L.  R.  6  Cli.  Div.  264. 

§878. 
V.  State,  26  Ala  283.    §§  104, 106. 
V.  State,  7  Blackf.  93.    g§  166,  225. 
V.  Stearns,  18  Gratt  244.     §  478. 
V.  Taylor,  10  IVIinn.  107.     §§  300, 

326. 
V.  United    States,    2    How.    197. 

§§  347,  361. 
V.  Wilkinson,  L.  R  4  Q.  B.  Div. 

228.     §  243. 
V.  Williams,  78  Va.  422.    §  396. 
Telf  er  v.  Northern  R.  R.  Co.  30  N.  J.  L. 

188.     §  371. 
Tempe  v.  State,  40  Ala  350.     §  167. 
Temple    v.    Hays,   Morris    (la),    12. 

§  104. 
V.  State,  15  Tex.  App.  304.    §  306. 
Templeton   v.    Home,    82    111.    491. 

§§  164,  206. 
V.  Morgan,  16  La  Ann.  438.  §  299. 
Tennant's  Case,  3  Neb.  409.     §  26. 
Tennant  v.  Brookover,  12  W.  Va  337. 
§482. 


Tennessee  v.   Davis,   100  U.   S.   251. 
§21. 

V.  Sneed,  96  U.  S.  69.    §g  471, 476, 
478. 
Terrett  v.  Taylor,  9  Cr.  43.     §  472. 
Terrill  v.  Jennings,  1  Met.  (Ky.)  450. 

§444 
Territory  v.  Lee,  2  Mont  124.     §  25. 

V.  O'Connor,  41  N.  W.  Rep.  746. 
§330. 
Territt   v.    Woodruff,    19   Yt     182. 

§184. 
Terry  v.  Merchants'  &  Planters'  Bank, 

66  Ga  177.     §  298. 
Teter  v.  Clayton,  71  Ind.  237.     §  168. 
Tetzner  v.  Naughton,  12  111  App.  148. 

§374. 
Tewksbm-y  v.  Schulenberg,  41  Wis. 

584.     §  405. 
Texas  v.  White,  7  Wall  733.     §  20. 
Texas  Land  Co.  v.  Williams,  48  Tex. 

602.     §  342. 
Thames,  etc.   Ins.   Co.  v.  Hamilton, 

L.  R.  12  App.  Cas.  484.    §  275. 
Thatcher  v.  Powell,  6  Wheat   119. 

§§  187,  391. 
Tharp  v.  Fleming,   1   Houston,   580. 

§194. 
Thayer  v.  Dudley,  8  Mass.  296.  §§  288, 
322. 

V.  Felt  4  Pick.  854.     §  115. 

V.  Hedges,  22  Ind.  282.     §  21. 

V.  Seavey,  11  Me.  284.     §  165. 
Theriat  v.  Hart  2  HiU,  380.     §  256. 
Thistle  V.  Frostbm-g  Coal  Co.  10  Md. 

129.     §  480. 
Thomas  v.  Beckman,  1  B.  Mon.  29. 
§184. 

V.  Collins,  58  Mich.  64     §§  102, 
160. 

V.  Dakin,  22  Wend.  9.    §  36. 

V.  Douglass,  2    John.    Ca&    226. 
§112. 

V.  Huesman,    10    Ohio    St    152. 
§398. 

V.  Railroad    Co.    101    U.    a    82. 
§381. 

V.  Richmond,  12  WalL  349.  §  380. 

V.  Scott,  23  La  Ann.  689.    §  109. 


CASES    CITED. 


cxv 


Thomas  v.  Stephenson,  3  E.  &  B.  108. 

§  433. 
V.  Wabash,  etc.  R.  R  Co.  40  Fed. 

Rep.  126.     §  102. 
Thomason,   Ex  parte,   IG  Neb.   238. 

^•g  102,  103. 
Thomason,  Ex  parte,  7  Md.  151.  §  170. 
Thomason  v.  Ashworth,  73  Cal.  73. 

§  125. 
V.  DiU,  34  Ala.  175.    §  320. 
Thompson    v.   Bassett,    5    Ind.    535. 

§166. 
V.  Buckhannon,    2    Marsli.    416. 

§453. 
V.  Ellison,  78  111.  277.     §§  215,  239. 
V.  Caldwell,  3  Litt  136.    §  479. 
V.  Clay,  60  Mich.  62.     §  207. 
V.  Cox,  8  Jones'  (N.  C.)  L.  311. 

§395. 
V.  Egbert,  17  N.  J.  L.  459.     §  400. 
V.  Farrer,  9  Q.  B.  Div.  372.  §  246. 
V.  Floyd,  2  Jones'  L.  313.     §§  68, 

70. 
V.  HaskeU,  25  HI.  215.     §  298. 
V.  Howe,  46  Barb.  287.     §  166. 
V.  Lee    County,    3    Wall.     327. 

§§  380,  484 
V.  Musser,  1  DalL  402.     §  190. 
V.  Read,  41  Iowa,  48.    §  10. 
V.  Smith,  7  Serg.  &  R  209.    §  364 
V.  State,  20  Ala.  54.     §  246. 
V.  State,  26  Ark.  323.     §  452. 
V.  Strickland,  52  Miss.  574  §  322. 
V.  Ward,  L.  R  6  C.  P.  353.  §  441. 
T.  Weller,  85  lU.  197.  §g  400,  401. 
Thornburg  v.  Thornburg,  18  W.  Va. 

522.     §  482. 
Thome   v.    Cramer,    15    Barb.    112. 

§§  67, 180. 
V.  San  Francisco,  4  CaL  127.  §  206. 
Thornton  v.  Lane,  11  Ga,  459.     §  213. 

V.  McGrath,  1  Duv.  349.    §  483. 
Thorpe  t.  Adams,  L.  R  6  C.  P.  125. 

§157. 
V.  Corwin,  20  N.  J.  L.  311.   §  426. 
V.  R  &  B.  R  R  Co.  27  Vt   140. 

§g  370,  373,  473. 
V.  Schooling,  7  Nev.  15.     §§  138, 

154. 
h 


Thouvenin  v.  Rodrigues,  24  Tex.  468. 

§399. 
Thrasher    v.   Everhart,  3  Gill  &    J. 

234     §§  188,  190. 
Thurston  v.   Percival,   1    Pick.   415. 
§§  184,  297. 

V.  PreutLs'!,  1  Midi.  193.     §§  204 
325,  456. 
Ticknor's  Estate,  Matter  of,  13  ^lich. 

44.     §§  341,  271. 
Tide  Water  Canal  Co.  v.  Archer,  9 

Gill  &  J.  479.     §  387. 
Tidey  v.  Mollett,  16  C.  B.  (N.  S.)  298. 

§256. 
Tiernan  v.   Rinker,    102   U.   S.    123. 

§  169. 
Tierney  v.  Dodge,  9  Minn.  166.   §  157. 
Tiger  v.  IMorris  Pleas,  42  N.  J.  L.  631. 

§§  127,  128. 
Tilford  V.  Ramsey,  43  Mo.  410.   §§  10, 

229. 
Tilley  v.  Hudson  R.  R  R.  Co.  24  N.  Y. 

474    §  371. 
Tillman  v.  Cocke,  9  Baxt  429.    §  169. 
Tilton  V.  Swift,  40  Iowa,  78.     §§  206, 

469,  482. 
Tmilow  V.  Railroad  Co.  99  Pa.  St  284 

§194 
Timm    v,    Harrison,     109    IlL     593. 

§§  131,  135. 
Timms    v.    Williams,   3    Q.   B.   413. 

§396. 
Tims  V.  State,  26  Ala,  165.     §  137. 
Tindal  v.  Drake,  60  Ala.  170.    §  194 
Tingue  v.  Port  Chester,  101  N.  Y.  294 

§101. 
Tinkham  v.  Tapscott,  17  N.  Y.  153. 

§332. 
Tioga  R  R  Co.  v.  Blossburg,  ete.  R 

R  Co.  30  Walk  137.    §  185. 
Tipton  V.  Carrigan,  10  IlL  App.  318. 
§336. 

V.  Davis,  5  Hayw.  378.    §  309. 
Tisdell  V.  Combs,  7  Ad.  &  E.  796.   §  379. 
Titcomb  v.  Insurance  Co.  8  ]\Iass.  338. 

§  325. 
Titus  V.  Scantling,  4  Blackf.  89.  §  184 
Titusvill's  Appeal,   108  Pa.  St  600. 

§  358. 


CXVl 


CASES   CITED. 


Tivey  v.  People,  8  Mich.  128.    §§  11, 

163,  481. 
Trimmer  v.  Heagy,  16  Pa.  St.  484. 

g458. 
Tobin  V.   Hartshorn,  69  Iowa,  648. 

§167. 
Todd  V.  Clapp,  118  Mass.  495.    §  201. 

V.  Flournoy's  Heirs,  56  Ala.  99. 
§194. 

V.  Landry,  5  Martin,  459.     §  165. 
Toledo,   etc.  R  R.  Co.  v.  Dunlap,  47 
Mich.  456.     §  94. 

V.  Jacksonville,  67  111.  37.     §  473. 
Tolford  T.  Chiu-ch,  66  Mich.  431.  §  97. 
Toll  V.  Wright,  37  Mich.  93,     §  368. 
Tohnie  v.  Dean,   1  Wash.    T'y,    47. 

§462. 
Tolson  V.  Kaye,  3  Brod.   &  B.   223. 

§368. 
Tomkins  v.  Ashby,   6  B,   &  C.   541. 

§363. 
Tomhnson  v.  BuUock,  L.  R.  4  Q.  B. 
Div.  230.     §110. 

V.  Greenfield,  31  Ark.  557.     §  302. 
Tomson  v.  Ward,  1  N.  H  .9.     §  333. 
Tong  V.  Marvin,  15  Mich.  60.     §§  146, 

338. 
Tonnele  v.  HaU,  4  N.  Y.  140.    §§  240, 

292,  300. 
Torrance  v.  McDougald,  13  Ga.  536. 

§215. 
Torrey  v.  Corliss,  33  Me.  333.     §  206. 

V.  MUlbm-y,  31  Pick.  64    §§  448, 
455. 
Torreyson  v.  Board  of  Examiners,  7 

Neb.  19.    §  311. 
Toutm  V.  Douglas,  33  L.  J.  Q.  B.  66. 

§335. 
Touzalm   v.   Omaha,    25    Neb.    817. 

§  103. 
TovveU  V.  HoUwey,  81  Ind.  154.  §  113. 
Towle  V.  Larrabee,  26  Me.  464.    §  336. 

V.  Man-ett,  3  Greenlf.  22.     §  154. 
Towles,  Ex  parte,  48  Tex.  413.  §§  170, 

173,  175. 
Town  of  Fox  v.  Town  of  Kendall,  97 

III  72.     §  75. 
Towns  V.  Mead,  16  C.  B.  123.   §  434. 
Townsend's  Case,  Plowd.  113.     §  140. 


Townsend  v.  Brown,  24  N.  J.  L.  8ft. 
§§  338,  378. 

V.  Deacon,  3  Ex.  706.   §§  434, 435. 

V.  Jamison,  9  How.  407.    §  479. 

V.  Little,  109  U.  S.  504.     §§  158,. 
X36. 

V.  Read,  10  C.  B.  (N.  S.)  308.  §  353. 

V.  Todd,  91  U.  S.  453.    §  185. 

V.  Townsend,  Peck,  1.     §  478. 
Tracy  v.  Elizabethtown,  etc.  R.  R.  Co. 
80  Ky.  259.     §  387. 

V.  Tnffly,  134  U.  S.  306.     §§  138, 
154. 
Trade  Mark  Cases,  100  U.  S.  83. ,  §  173. 
TrapnaU,  Ex  parte,  6  Ai-k.  9.   §  336. 
Trask  v.  Green,  9  Mich.  866.     §  10. 
Treacy,  In  re  Petition  of,  59  Barb. 

535.     §  464. 
Treadwell  v.  Commissioners,  11  Ohio 

St.  190.     §  378. 
Treasurer  v.  Wygall,  46    Tex.   447. 

§164. 
Treasiu-ers  v.  Lang,  3    Bailey,  430. 

§313. 
Treat   v.    Strickland,    33    Me.    334. 

§167. 
Trevor's  Case,  Cro.  Jac.  269 ;  12  Coke, 

369.     §  429. 
Ti-igally  v.  Mayor,  etc.  6  Cold.  382. 

§70. 
Trigg  V.  State,  49  Tex.  645.     §  356. 
Triplett  v.  Graham,  58  la.  135.    §  400. 
Tripp  V.  Overocker,  7  Colo.  73.   §  169. 
Trist  V.  Cabenas,  18  Abb.   Pr.    143. 

§482. 
Troup  V.  Smith,  30  John.  33.     §  437. 
Troy,   etc.   R.   R.   Co.  v.  Tibbits,  18 

Barb.  297.     §  399. 
Trueman  v.  Lambert,  4  K  &  S.  238. 

§212. 
Trustees  v.  Bailey,  10  Fla.  338.    §  119. 

V.  Laird,  4  De  G.  M.  &  G.  732. 
§137. 

V.  McConnel,  12  HI.  140.     §  380. 

V.  Osborne,  9  Ind.  458.     §  365. 
Ti-ustees  of  V.  University  v.  Indiana, 

14  How.  208.     §  473. 
Tuckahoe  C.  Co.  v.  T.  R  R.  Co.  11 

Leigh,  42.     §  378. 


CASES    CITED. 


CXVll 


Tuohy  V.  Chase,  30  Cal.  524,     §  449. 
Turloy  v.  County  of  Logan,  17  111. 
153.    §48. 

V.  Thomai!,  8  C.  &  P.  103.    §  296. 
Turner    v.    Board    of    Commission- 
ers, 27  Kan.  314.    g§  109, 170, 
197. 

V.  Fish,  28  Miss.  306.     §  296. 

V.  Patton,  49  Ala.  406.     §  298. 

V.  State,  40  Ala.  21.    §§  142,  144, 
260,  470. 
Turaey  v.  Wilton,  36  111.  385.    §§  133, 

390. 
Turnpike  Co.  v.  Davidson  Co.  3  Tenn. 
Ch.  396.     §  473. 

V.  State,  3  Wall.  210.    §  378. 

V.  State,  1  Sneed,  474.     §  247. 
Turtle   V.    Hartw-ell,    6    T.    R    426. 

§§  207,  410,  416,  430. 
Tuskaloosa  Bridge  Co.  v.  Jemison,  33 
Ala.  476.    §§  207,  439. 

V.  Obnstead,  41  Ala.  9.     §§  131, 
132, 135. 
Tuten  V.  Gazan,  18  Fla.  751,     §  190. 
Tuttle  V.  Gates,  24  Me.  395.    §  115. 

v.  Griffin,  64  Iowa,  455.     §  315. 

V.  State,  4  Conn.  68.     g  367. 

V.  Sti-out,  7  Minn.  465.     §  92. 

V.  Walton,  1  Ga.  51.     §  400. 
Tuxbury's  Appeal,  67  Me.  267.    §  333. 
Twenty-eight  Cases,  In  re,  2  Ben.  63. 

§361. 
Twenty-eighth  St    102  Pa.   St   140. 

§396. 
Two  Hundred  Chests  of  Tea,  9  Wheat 

430.     §  254. 
Twycross  v.  Grant,  2  C.  P.  D.  530, 

§207, 
Twyne's  Case,  8  Co,  826,    §  444, 
Tylee  v.  Yates,  3  Barb.  222.    §  336. 
Tyler  v.  People,  8  Mich.  320.     §  331. 

V.  Trabue,  8  B.  Mon.  306.     §  190. 
Tynan  v.  Walker,  35  Cal.  634.    §§  236, 

415,  425. 
Tyng  V.  Commercial  Warehouse  Co. 

58  N.  Y.  308.    §  381. 
Tyson  v.  State,  28  Md.  587.    §  122. 

V.    Thomas,    McC.    &    Y.    127, 
§§  137,  337. 


Uliler  V,  Semple,  29  N,  J.  Eq.  28a 

§190. 
Uncas  National  Bank  v.  Rith.  23  Wis. 

339.     §  204. 
Underwood    v.    Irving,   3  Cow.   59. 
§207. 
V.  McDuffee,  15  Midi.  801.  g  132. 
Union  v.  Rader,  39  N.  J.  L.  509.  §§  86, 

88,  93. 
Union  Bank  v.  Jacobs,  6  Humph.  315. 
§385. 
V.  Laird,  2  WHieat  390.     §  459. 
Union  Canal  Co.  v.  Young,  1  Whart 

410.     §  428. 
Union  Horse  Shoe  Works  v.  Lewis,  1 

Abb.  (U.  S.)  518.    §  185. 
Union  Ins.  Co.  v.  Hoge,  21  How.  85. 
§§  229,  309. 
V.  United  States,    6    Wall.    759. 
§252. 
Union  Iron  Co.  v.  Pierce,  4  Biss.  327. 

§§  166,  206. 
Union  Pac.  R.  R  Co.  v.  Dunden,  34 
Am.  &  Eng.  R  R.  Cas.  8& 
§371. 
V.  United  States,  10  Ct  of  CI.  559 ; 
91  U.  S.  72.     §  199. 
Union  Passenger  R'y  Co.'s  Appeal, 

81*  Pa.  St  91.    §§  80,  90. 
United  Hebrew  B.   Asso.    t.   Bens- 
Iiimol,  130  Mass.  325.     §§  133, 134, 
167,  480. 
United  States  v.  Arredondo,  6  Pet 
738.     §378. 
V.  Athens  Armory,   35  Ga.  344. 

§§  349,  356. 
V.  Babbit,   1  Black,  55.    §§  223, 

267,  334. 
V.  Bank,  6  Pet  29.    §  309. 
V.  Barr,    4    Sawy.    254.     §§  154. 

167. 
V.  Barrels    of    High    Wines,    7 

Blatch.  459.     §  361. 
V.  Barrels  of  Spirits,  2  Abb.  (U.  S.) 

305.     §  361. 
V.  Bassett,  2  Storj-,  389.     §§  215, 

241,  246,  347. 
V.  Beaty,  Hempst  487.     §  354. 
V.  Boisdore,  8  How.  113.   §  165. 


CXVlll 


CASES    CITED. 


United  States  v.  Bowen,   100  U.  S. 

508.    §§  156,  161. 
V.  Breed,  1  Sumn.  159.     §§  254, 

346,  361. 
V.  Bui-cliard,  125  U.  S.  176.   §  442. 
V.  Case  of  Pencils,  1  Paine,  406. 

§§  142,  143. 
V.  Cases  of  Cloths,  Crabbe,  356. 

§361. 
V.  Central  Pac.  R.  R.  Co.  118  U.  S. 

235.     §  171. 
V.  Cheeseman,  3  Sawy.  424.   §  154. 
v.  Claflin,  97  U.  S.  546.     §§  137, 

138,  154,  155. 
V.  Dickey,  Morris  (la.),  412.    §325. 
V.  Dickson,  15  Pet.  141.     §  223. 
V.  DistUled    Spii-its,   10    Blatchf. 

428.     §  361. 
V.  Ferreira,  13  How.  40.     §  10. 
V.  Fifty -six  Barrels  of  Whisky,  1 

Abb.  (U.  S.)  93.     §  353. 
V.  Finlay,    1    Abb.   (U.   S.)    364. 

§166. 
V.  Fisher,  2  Cr.  358.     g§  197,  210. 
v.  Four     Thousand    Am.     Gold 

Coin,  1  Woolw.  217.     §  298. 
V.  Fox,  94  U.  S.  315.     §  187. 
V.  Freeman,  3  How.  565.    §§  283, 

414. 
T.  Garrelson,   42    Fed.    Rep.    22. 

§353. 
V.  Gear,  3  How.  120.     §§  136, 138. 
T.  GUmore,  8  Wall  330.     §§  206, 

222,  229,  255,  309,  402. 
V.  Green,  4  Mason,  427.    §  333. 
V.  HaU,  2  Wash.  366.     §  466. 
v.  Harris,  106  U.  S.  629.     §  173. 
V.  Harris,  1  Sumn.  21.    §  283. 
V.  Hartwell,  6  Wall  395.    §§  234, 

237,  350,  473. 
V.  Hawkins,  4  Martin  (N.  S.),  317. 

^§  215,  240. 
V.  Helen,  6  Cranch,  203.     §  225. 
V.  Hewes,  Crabbe,  307.  §§  333,  335. 
V.  Hirsch,  100  U.  S.  33.     §  156. 
V.  Hoar,  2  Mason,  311.     §  333. 
V.  Hodson,  10  WaU.  395.     §  361. 
V.  Huggfctt,    40    Fed.    Rep.    636. 

§349. 


United  States  v.  Hunter,  Pet.  C.  C.  16. 

§322. 
V.  Isham,  17  Wall  496.     §  232. 
V.  Jarvis,   Davies,    274      g§  218, 

240. 
V.  Johns,  4  DaU.  412.    §  190. 
V.  Johnson,  2  Sawyer,  482.   §  298. 
V.  Jones,  3  Wash.  209.     §  247. 
V.  Kmg,  7  How.  883.     §  181. 
V.  Kirby,   7  Wall  486.     §§  218, 

332. 
V.  Klein,  13  Wall.  128.    §  10. 
V.  Kohnstamm,    5  Blatchf.   222. 

§  225. 
V.  Lacher,  134  U.  S.  624.     §  156. 
V.  Langston,  118  U.  S.  389.    §  150. 
V.  Lytle,  5  McLean,  9.     §  309. 
V.  McKenzie,  2  Brock.  393.    §  219. 
V.  Megill,  1   Wash.   463.    §§  247, 

253,  291. 
V.  Mann,  1  Gall.  177.     §  11. 
V.  Martin,  94  U.  S.  400.    §  336. 
V.  Mayor,    etc.    2    Am.   L.   Reg. 

(N.  S.)  394.     §  365. 
V.  Moore.  95  U.  S.  760.     §  309. 
V.  Morrison,  4  Pet  124     §§  186, 

191. 
V.  Morse,  3  Story,  87.    §g  371, 419. 
V.  Moulton,  5  Mason,  537.     §  349. 
V.  New  Bedford  Bridge,  1  Woodb. 

&  M.  401.     §§  208,  342. 
V.  Olney,    1    Abb.    (U.    S.)    275. 

§361. 
.  V.  One  Hundred  Barrels  of  Spir- 
its, 2  Abb.  (U.  S.)305.  §§  138, 

253. 
V.  One    Hundred    and    Twelve 

Casks  of  Sugar,  8  Pet.  277. 

§254 
V.  One    Hundred    and   Twenty- 
nine  'Packages,    2    Am.    L, 

Reg.  (N.  S.)  419.     §  361. 
V.  Palmer,  3  Wheat  610.     §  210. 
V.  Passmore,  4  Dall  372.     §  11. 
V.  Paul,  6  Pet  141.    §§  257,  350. 
V.  Pearce,  2  McLean,  14     §  355. 
V.  Perchenian.  7  Pet  51.     §  19. 
V.  Philadelphia,    11    How.     609. 

§  181. 


CASES   CITED. 


CXIS 


United  States  v.  Powers'  Heirs,  11 

How.  577.    §  19. 
V.  Ragsdale,  Hempst  497.  §§208, 

236,  238,  349. 
V.  R.  R.  Cos.  1  Abb.  (U.  S.)  196. 

§  232. 
V.  Ramsay,  Hempst  481.    §  208. 
V.  Rathbone.  2  Paine,  578.    §  197. 
V.  Reese.  92  U.  S.  214.     §  173. 
V.  Reissinger,     128    U.    S.    398. 

gl67. 
V.Rhodes,    1    Abb.    (U.    S.)    36. 

§234. 
V.  Rossvally,  3  Ben.  157.    §  260. 
V.  Samperyac,    1    Hempst     118. 

§10. 
V.  Sarchet,  Gilpin,  273.     §  254. 
V.  Saundei-s,  22  WaU.  492.    §  240. 
V.  Schooner  Peggy,  1  Cranch,  103. 

§197. 
V.  Sheldon,  2  Wheat.  119.    §§  350, 

351. 
V.  Ship  Recorder,  1  Blatcli.  218. 

§§  307,  312. 
V.  Six  Fermenting  Tubs,  1  Abb. 

"(U.S.)  364.     §166. 
V.  Sixty -seven  Packages,  17  How. 

85.    §138. 
V.  Star,    Hempst  469.      §§    206, 

208. 
V.  Stern,  5  Blatch.  512.     §  260. 
V.  Ten  Cases  of  Shawls,  2  Paine, 

162.     §§  252,  351. 
V.  Ten  Thousand  Cigars,  1  Woolw. 

123.     §  141. 
V.  Tlie  Peggy,  1  Cr.  103.    §  164. 
V.  The  Sadie,  41   Fed.  Rep.  306. 

§321. 
V.  Three  Tons  of  Coal,  6  Biss.  379. 

§361. 
V.  Tingey,  5  Pet  115.     §  453. 
V.  Turner,  11  How.  663.    §§  181, 

189,  293,  295. 
V.  Twenty-five    Cases    of  Cloth, 

Crabbe,  356.     §  138. 
V.  Tynen,   11  WaU.  88.    §§  142, 

143,  154,  155,  165. 
V.  Union  Pacific  R  R  Co.  91  U.  S. 

72.     §  300. 


United  States  v.   Walker,  22  How. 
299.    §  138. 

V.  Warner,  4  McL<-an,  463.     §  2381 

V.  Watts,  1  Bond,  580.    §  363. 

V,  Webster,  Davies,  38.     f§  212, 
300. 

V.  Wigglesworth,    2    Storj-,  309. 
§§  361,  362,  363. 

V.  Wilder,  13  Wall.  254.     §  368. 

V.  Willetts,  5  Ben.  220.     §  361. 

V.  Wilson,  Baldw.  78.     §  255. 

V.  Wiltberger,     5      Wheat     76. 
§§  208,  234,  349. 

V.  W^um,  3  Sumn.  209.    §§  348, 
350,  357. 

V.  Wyngall,   5  HiU,  16.    §§  202, 
341,  399.    §  456. 
United  States  Bank  v.  Longworth.  1 

McLean,  35.    §  10. 
United  States  Express  Co.  v.  EUyson, 

28  Iowa,  370.     §  125. 
United   States  Tr.  Co.  v.  Brady,  '20 

Barb.  119.     §  117. 
Unity  v.  BuiTage,  103  U.  S.  447.  §§  93, 

96,  103,  170,  193,  198. 
University  of  Nortli  CaroUna  v.  Fay, 

1  Murph,  58.     §  472. 
Upson,  In  re,  89  N.  Y.  67.    §  93. 
Usener  v.  State,  8  Tex,  App.  177.   §  46. 
Utica  Water- W^orks  Co.  v.  Utica,  31 

Hun,  426.     §  95. 
Utsey  v.  Hiott  30  S.  C.  360.    §  122. 
Uwchlan  Township  Road,  30  Pa.  St 

156.     §§  165,  206,  464. 

VaU  V.  Dinning,  44  Mo.  210.    §  397. 

V.  Easton,  etc.  R  R  Co.  44  N.  J. 
L.  237.     §  157. 

V.  McKernan,  21  Ind.  421.    §  342. 
Vanada  v.  Hopkins,    1   J.  J.  Marsh. 

285.     §  306. 
Van  Antwerp,  In  re,  1  T.  &  C.  423 : 

56  N.  Y.  261.     §  483. 
Van  Antwerp,  In  re,  1  T.  «fe  C.  423. 

§99. 
Van  Antwerp,  Matter  of,  56  N.  Y.  261. 

§170. 
Vanatta   v.    Anderson,  3    Bin.  417. 

§343. 


tJXX 


CASES    CITED. 


Van  Buren  v.  Wylie,  56  Mich.  501. 

g  350. 
Vance  v.  Grainger,  N.  C.  Conf.  71. 
§426. 

V.  Gray,  9  Bush,  656.     §  260. 
Van  Denbm-gh  v.  President,  etc.  66 

N.  Y.  1.     g  168. 
Vanderberg,  In  re,  28  Kan.  243.    §  48. 
Vanderbilt  v.   Adams,    7   Cow.  349. 

§473. 
Vanderburgh  v.  Rensselaer,  6  Paige, 

147.    §§  111,  113. 
Vanderkar  v.  Railroad  Co.  13  Barb. 

390.     §  11. 
Vander  Donckt  v.  Thelluson,  8  C.  B. 

812.     §  190. 
Vanderstolph  v.  Boylan,  50  Mich.  330. 

§339. 
Vanderwerker  v.  People,  5  Wend.  580. 

§298. 
Van  Deusen  v.  Hayward.  17  Wend. 

67.     §  453. 
Vaudike  v.  Rosskam,  67  Pa.  St.  330. 

§364. 
Vane  v.  Vane,  L.  R.  8  Ch.  383.    §  428. 
Van  Fleet  v.  Van  Fleet,  49  Mich.  610. 

§§  206,  215,  324. 
Van  Giesen  v.  Bloomfield,  47  N.  J.  L. 

442.     §  128. 
Van  Hagan,  Ex  parte,  25  Oliio  St. 

426.     §§  138,  151. 
Vanhorne  v.  Dorrance,  2  DalL  304. 

§§  363,  390. 
Vandall  v.  South  T.  F.  Dock  Co.  40 

CaL  83.    §  381. 
Vau-in  v.   Edmonson,  5    GUm.    270. 

§§  113,  114. 
Vallance  v.  Falle,  L.  R.  13  Q.  B.  Div. 

109.     §  204. 
Valton  V.  National  Loan,  etc.  Co.  19 

How.  Pr.  515.     §  369. 
Van  Hook  v.  Whitlock,  2  Edw.  304. 

§§  340,  434 
Van  Horns   v.  Petrie,  2   CaL    213. 

§  371. 
Van  Horenburgh  v.  Case,  4  IliU,  541. 

§371. 
Van  Inwagen  v.  Chicago,  61  IlL  31. 

§163. 


Van  Loon  v.  Lyon,  4  Daly,  149.  §§  314, 

317. 
Vanneman  v.  Young  (N.  J.),  20  Atk 

Rep.  53.     §  456. 
Van    Ness    v.    Pacard,  2    Pet.    137. 

§184. 
Van    Norman    v.    Jackson    Circuit 

Judge,  45  Mich.  204.     §§  10,  393, 

402. 
Van  Rensselaer  v.  Ball,  19  N.  Y.  100. 
§206. 

V.  Kearney,  11  How.  297.     §  187. 

V.  Livingston,     12    Wend.     490. 
§206. 

V.  Sher.iff,  1   Cow.  443.     §§   208, 
322. 

V.  Snyder,  13  N.  Y.  299.     §  206. 

V.  Snyder,  9  Barb.  302.     §  138. 

V.  Snyder,  9  Barb.  302 ;  13  N.  Y. 
299.     §  478. 
Van  Riper  v.  Essex  P.  R  B'd,  38  N.  J. 
L.  23.     §§  283,  288. 

V.  Parsons,  40  N.  J.  L.  123.  §  127. 
Van  Sicklen  v.  Bui-Ungton,  27  Vt  70. 

§345. 
Van  Swartow  v.  Commonwealth,  24 

Pa  St.  131.     §  193. 
Van  Slyke  v.  Trempealeau,  etc.  Ins. 

Co.  39  Wis.  390.     §  395. 
Van  Valenburgh  v.  Torrey,  7  Cow. 

252.     §§  168,  208,  398. 
Van  Winkle  v.  Constantine,  10  N.  Y. 

314.     §§  422,  483. 
Van  Wyck    v.    Hills,    4    Rob.    140, 

§184. 
Vanzant  v.  Waddel,  2  Yerg.  260.  §§  5, 

119,  124 
Vardeman  v.  Lawson,   17    Tex.   10. 

§184 
Vaughan  v.  Swayzie,  56  Miss.   704 

§483. 
VauxhaU  Bridge  Co.  v.  Earl  Spencer, 

2  Mad.  356.    §  194 
Vavasour  v.  Ormrod,  6  B.  &  C.  430. 

§222. 
Vawter  v.  Pac.  R'y  Co.  84  Mo.  679. 

§14 
Veats   V.    Danbury,    37    Conn.   412. 

§165. 


CASES    CITED. 


CXXl 


Veazie  v.  China,  50  Me.  518.    §  454. 
Venour  v.  Sellon,  L.  R.  2  Ch.  Div. 

523.     §  233. 
Ventress     v.    Smith,     10     Pet    161. 

§344. 
Vicar,  etc.    of    St.    Sepulchre's,    Ex 

parte,  33  L.  J.  Ch.  373.     §  238. 

Vicksbiirg,   etc.   R'y  Co.   v.  Dennis, 

116U.  S.  665.     §364. 

T.  State,  62  Miss.  105.     §  363. 
Victory  v.  Fitzpatrick,   8  lud.   281. 

§§  204.  325. 
Vidal  V.  Girard's  Heirs,  2  How.  128. 

§15. 
Viehe  v.  Towers,  Cohnan  &  CaL  90. 

§371. 
Victor    V.    Arthur,    104    U.    S.   498. 

§§  156,  161. 
Vigo's   Case,  21   Wall.   648.     §§207, 

416,  440. 
Vincent,    Ex     parte,    26     Ala.    145. 

§g  247,  291. 
Vincent  v.  Nantucket,  12  Cush.  103. 

§  380. 
Vining  v.  Bricker,  14  Ohio  St.  331. 

§336. 
Vhisant  v.  Knox,  27  Ai'k.  266.  §§  41, 

48. 
Vinton  v.  Builders',  etc.  Asso.  109  Ind. 

351.     §  245. 
Virden  v.  Allen,  107  111.  505.     §  96. 
Virginia  City,  etc.  R.  R.  Co.  v.  Lyon 

County,  6  Nev.  68.     §  236. 
Virginia  Coupon  Cases,  114  U.  S.  305. 

§§  173,  174. 
Viterbo  v.  Friedlander,  120  U.  S.  707. 

§239. 
Viti  V.  Dixon,  12  Mo.  479.     §  114. 
Volans    V.    Owen,     74     N.    Y.    526. 

§375. 
Volmer  v.  State,  34  Ark.  487.    §  167. 
Von  Baumbach  v.  Bade,  9  Wis.  559. 

§  475. 
Von  Hoffman  v.  Quincy,  4  Walk  535. 

§§  206,  471.  476,  477,  478. 
Voorhees  v.    IMartin,   12  Barb.   508. 

§341. 
Vorhees  v.  Bank  of  United  States,  10 

Pet  449.     §  222. 


Wabash,  etc.  Co.  v.  Beers,  2  Black, 

448.     g  472. 
Wade  V.  St  Mary's  School,  43  Md, 

178.    §§  164,  165. 
Wadsworth  Board  of  Works  v.  United 

Telephone  Co.,  L.  R.  13  Q.  B.  Div. 

904. '  §  390. 
Wagar  v.  Briscoe,  38  Mich.  587.  §  398. 
Wagner  v.  Stoll,  2  Rick  (N.  S.)  539. 

§151. 
Wainewright    In    re,    I    Pliil.    258. 

§§  218,  219,  246,  324. 
Wait  V.  Van  Allen,  22  N.  Y.  319. 

§207. 
Wakelield  v.  Phelps,  37  N.  H.  295. 
§§  287,  288. 

V.  Smart,  8  Ark.  488.     §  424. 
Wakeley  v.  Mohr,  15  Wis.  609.  §  170. 
Wakker,  In  re,  3  Bai-b.  162.     §§82, 

100. 
Wakker,  Re,  1   Edm.  Sel.  Cas.  575. 

§198. 
Waldby  v.   Callendar,  8  Mich.   430. 

§397. 
Waldo    V.    BeU,   13    La.    Ann.    329. 

§§  202,  314,  399. 
Wales  V.  Belcher,  3  Pick.  508.     §§  75, 
193,  469. 

V.  Muscatme,  4  Iowa,  302.     §  428. 

V.  Stetson,  2  Mass.  146.     §§  322, 
473. 
Walker  v.  Board  of  PubUc  Works, 
16  Ohio,  540.    §  370. 

V.  Bmt,  37  Ga  20.    §  392. 

V.  Caldwell,    4    La.    Ann.    298. 
§§  78,  131,  132. 

V.  Chapman.  22  Ala,  116.    §  448. 

V.  Chicago,  56  111.  277.     §§  366, 
398,  441. 

V.  Ducros,  18  La.  Ann.  703.  §  342. 

V.  Forbes,    31    Ala,    9.    §§    190, 
191. 

V.  Griffith,  60  Ala.  361.    §§  46.  47. 

V.  Sheftall,  73  Ga.  806.     §  371. 

V.  State,  7  Tex.  App.  245.     §§  133, 
134,  143. 

V.  State.  49  Ala.  329.     §  170. 

V.  Wliitehead,     16     Wall     31^ 
§§  206,  471,  476. 


cxxu 


CASES   CITED. 


"Walkins  v.  Eureka  Springs,  49  Ark. 

131.    g  135. 
Wall,  Ex  parte,  48  Cal.  279.    §§  67, 

75,  183. 
WaU  V.  Garrison,  11  Colo.  515.    §  132. 

V.  State,  18  Tex.  682.    §  166. 

V.  State,  23  Ind.  153.     §§  136, 142. 
Wallace  v.  Burden,  17  Tex.  467.  §  184. 

V.  Finch,  24  Mich.  255.     §  355. 

V.  Holmes,  9  Blatchf.  65.     §  204. 

V.  San  Jose,  29  Cal.  180.     §  380. 

V.  SeaJes,  36  Miss.  53.     §  284. 

V.  Stevens,  74  Tex.  559.     §  328. 

V.  Taliaferro,   2    CaU  (Va),   389. 
§§  255,  291,  463. 
WaUer    v.    Harris,    20    Wend.    562. 

§§  196,  207,  235. 
Wallwyn  v.  Lee,  9  Ves.  25.     §  194. 
Wally    V.    Kennedy,    2    Yerg.    554. 

§g  119,  124. 
Walpole  V.  Elliott,  18  Ind.  258.   §  483. 
Walsh  V.  Boyle,  30  Md.  262.     §§  111, 
112,  113. 

V.  Dousman,  28  Wis.  541.   g§  118, 
130. 

V.  Trustees,  etc.    96    N.  Y.  427. 
§383. 
Walsingham's   Case,  2   Plowd.   565. 

§228. 
Walston  V.   Commonwealth,    16    B. 

Mon.  15.     §§  206,  469,  482. 
Walter  v.  People,  32  N.  Y.  147.   §  469. 
Walton,  Ex  parte,  L.  R.  17  Ch.  Biv. 

746.    §§  238, 241, 246,  323,  414. 
Walton  V.  Dickerson,  4  Ricli,  L.  568. 
§480. 

V.  State,  62  Ala.  197.    §§  289,  349, 
350. 
Wahvin  v.  Smith.  1  Salk.  177.    §  353. 
Wanet  v.  Corbet,  13  Ga.  441.   §  307. 
Wanestead  Board  v.  HiU,  13  C.  B. 

(N.  S.)479.    §275. 
Warburton  v.  Loveland,  2  Dow.  & 
CL  489.    §  236. 

V.  Loveland,  1  Hudson  &  Brooke, 
648.    §258. 
Ward  V.  Flood,  48  Cal.  36.    §  119. 

V.  Hartford.  12  Conn.  404.    §  428. 

V.  Hemy,  19  Wis.  76.    §  306. 


Ward  V.  Thompson,    48  Iowa,  588, 
§377. 

V.  Walters,  63  Wis.  44     §  114 
Warder  v.  Arell,  2  Wash.  (Va.)  282. 

§463. 
Wardle  v.  Townsend,  75  Mich.  305. 

§96. 
Ware  v.  Owens,  42  Ala  212.    §  206. 

V.  St.  Louis,  etc.  Co.  47  Ala  667. 
§135. 
Warehouse  Co.  v.  Lewis,  56  Ala.  514 

§246. 
Warfield,  Matter  of  Will  of,  22  Cal 

71.    §§  311,  314 
Warfield  v.  Fox,  53  Pa.  St.  382.  §§367, 
426. 

v.  Ravasies,  38  Ala  518.    §  400. 
Waring  v.  Jackson,  1  Pet  570.  §  187. 
Warne  v.  Beresford,  2  M.  &  W.  848. 
§165. 

V.  Varley,  6  T.  R.  443.    §  348. 
Warner   v.    Beers,    23   Wend.    125. 
§36. 

V.  Commonwealth,  2  Va  Cas.  95. 
§  190. 

V.  Commonwealth,  1  Pa  St.  154. 
§208. 

v.  Fowler,  8  Md.  25.     §§  290,  450. 
Warnick  v.  Grosholz,  3  Grant's  Cases, 

234     §  192. 
Warren  v.  Commonwealth,  37  Pa.  St. 
45.     §  469. 

V.  Englehart,  13  Neb.  283.     §  371. 

V.  Jones.  9  S.  C.  288.     §  480. 

V.  Lusk,  16  Mo.  102.    §  184 

V.  Mayor,  2  Gray,  84     §§  176. 180. 

V.  Shuman,  5  Tex.  441.    §  217. 

V.  Windle,  3  East,  205.     §  168. 
Warren  R.   R.   Co.  v.  Belvidere,   35 

N.  J.  L.  584     §  137. 
Warrick  v.  Roimds,  17  Neb.  411.  §  375. 
Warrington  v.  Furbor,  8  East.  242. 

§§  208,  362. 
Washer  v.  ElUott,  L.  R.  1  C.  P.  Div. 

174     §  268. 
Washington  v.  Page,  4  Cal.  388.  §  80. 

V.  Washington,  69  Ala  281.  §  483. 
Wassel  V.  Armsti'ong,  35  Ark.   247^ 

§224 


CASES   CITED. 


CXXUJ 


Wassel  V.  Tximiah,  25  Ark.  101.  g§  218, 

240,324 
Water  Commissioners  v.  Brewster,  42 

N.  J.  L.  125.    §  234 
"Water  Commissioners  of  Amsterdam, 

96  N.  Y.  351.    §  387. 
Waterford  v.  Hensley,  Mart  &  Yerg. 

(Tenn.)  275.     §  260. 
Waterhouse  v.  Keen,  4  B.  &  C.  200. 

252. 
"Waters  v.  Campbell,  4  Sawyer,  121. 

§267. 
Watertown  v.  Mayo,  109  Mass.  815. 

§370. 
Watervliet  T.  Co.  v.  McKean,  6  Hill, 

616.    §§260,347. 
"Water  "Works  Co.  v.  Burkhart,  44 

Ind.  864    §  154 
"Wathen  v.  Beaumont,  11  East,  271. 

§115. 
"Watkins  v.  Holman,  16  Pet  60.    §  3. 

V.  Major,    L.   R.   10    C.    P.    662. 
§355. 

V.  WasseU,  20  Ark.  410.    §§  204, 
325. 
"Watrous  V.  Blair,  32  Iowa,  58.    §336. 
"Watson  V.  Blaylock,  3  Mills  (S.  C), 
351.    §  137. 

V.  Hoge,  7  Yerg.  344     §§  229, 
234  236. 

V.  Kent,  78  Ala.  602.    §  188. 

V.Martin,    34    L.    J.    ]\L   C.   50. 
§351. 

V.  Mercer,  8  Pet  88.    §§  465,  483. 

V.  Gates,  58  Ala.  647.    §  194 

V.  State,  55  Ala.  158.    §  303. 

V.  Stone,  40  Ala.  451.    §  20. 

V.  Tarpley,  18  How.  517.    §  429. 
Waugh    V.    ]\Iiddleton,    8    Ex,    352. 
§§  258,  260,  463,  481. 

V.  Riley,  68  Ind.  482.    §  168. 
Waxahachie  v.  Brown,  67  Tex.  519. 

§380- 
Wayman  v.  Southard,  10  "Wheat  1. 

§§  3,  67,  68,  222,  229. 
"Weakley  v.  Pearce,    5    Heisk-    401. 

§168. 
"Wear  River  Commissioners  v.  Adam- 
son,  L.  R.  1  Q.  B.  Div.  549.    §  238. 


"Weatherf ord  v.  "Weatherf ord,  8  Port- 

171.    §  104 
"Weaver  v.  Lapsley,  43  Ala.  224    §  80. 

V.  McElhenon,  13  Mo.  89.    §  306. 
Webb,  Re,  24  How.  Pr.  247.    §  223. 
Webb  V.  Anspach,  3  Ohio  St  522. 
§  398. 

V.  Baird,  6  Ind.  13.    §  366. 

V.  Bird,  10  C.  B.  (N.  S.)  268 ;  13  id. 
841.    §265. 

V.  Fairmaner,  3  LL  &  W.   473. 
§§  111,  112. 

V.  Knight  2  Q.  B.  Div.  530.  §  254 

V.  Mullen,  78  Ala.  111.    §  400. 

W^ebber  v.  Howe,  36  Mch.  150.  §  164 

Weber  v.  Weber,  47  Mich.  569.    §  400. 

Webster  v.  Comity  Commissioners,  63 

Me.  27.    §  167. 

V.  French,  12  111.  302.    §§  112, 458. 

V.  Little  Rock,  44  Ark.  536.  §§41, 
43. 

V.  ]\Iorris,  66  Wia  366.  §§  15,  184 

V.  People,  98  IlL  343.    §  385. 

V.  Rose,  6  Heisk.  93.     §  478. 
Weckler  v.  First  Nat  Bank,  42  Md. 

581.    §381. 
Weed  V.  Lyon,  Walk.  Ch.  77.    §  456w 

V.  Tucker,  19  N.  Y.  422.    §  443. 
Weeks  v.  Hull,  19  Conn.  376.    §  111. 

V.  Weeks,  5  Ired.  Eq.  111.     §  106. 
Weil,  In  re,  83  N.  Y.  543.     §  457. 
Weil  V.  Suite,  46  Ohio  St  450.    §  95. 
WeiU  V.  Kenfield,  54  Cal.  111.     §§  41, 

48, 45,  250,  346. 
Weinman  v.  Wilkinsbvu-g,  etc.  R'y 

Co.  118  Pa  St  192.    §  129. 
Weir  v.  Cram,  37  Iowa,  649.     §  72. 
Weister  v.   Hade,    52    Pa.    St    474 

§§242,420. 
Welch    v.   Battem,    47    Iowa,    147. 
§109. 

V.  Hannibal,  etc.  R'y  Co.  26  'Mo, 
App.  358.     §  110. 

V.  Kline,  57  Pa  St  428.     §  324 

V.  Stowell,  2  Doug.   (]Mich.)  332. 
§370. 

V.  SuUivan,  8  Cal.  188.     §  316. 

V.  Wadswortli,     30    Conn.     149, 
§§  166,  474 


•CXXIV 


CASES   CITED. 


Welker   v.  Potter,   18  Ohio    St  85. 

§§  127,  457. 
Weller  v.  Weyand,  2  Grant's  Cas.  103. 

§893. 
Wells,  Ex  parte,  21  Fla,  280.    §  170. 
Wells  V.  Bright,  4  Dev.  &  Batt.  L. 
173.     §  110. 
V.  Child,  12  AUen,  333.    §§  368, 

426. 
V.  County  Commissioners,  79  Me. 

522.     §  388. 

V.  Supervisors,    102    U.    S.    625. 

S140. 

Welman,  Matter  of,  20  Vt.  658.  §  110. 

Wendel  v.  State,  62  Wis.  300.     §  385. 

Wendell    v.    Durbin,    26   Wis.    390. 

§454. 
Werborn   v.    Austm,    77    Ala,    381. 

§154. 
Werner  v.   Edmiston,  24  Kan.  147. 

§377. 
West  V.  Blake,  4  Blackf.  234.    §§  193, 
198. 
V.  Creditors,     1     La.    Ann.    365. 

§104. 
V.  Downman,  L.  R.  14  Cli.  Div. 

111.    §  204. 
V.  Francis,  5  B.  &  Aid.  737.    §  256. 
V.  Pickesimer,  7  Ohio,  235.  §  424. 
V.  Sausom,  44  Ga.  295.     §  478. 
West  Boston  Bridge  v.  County  Com- 
missioners, 10  Pick.  270.    §  388. 
"Westbrook  v.  Miller,  56  Mich.    148. 
§309. 
V.  Rosborough,  14  Cal.  180.  §  451. 
V.  WiUey,  47  N.  Y.  457.     §  457. 
WTest  End,  etc.  R.  R.  Co.  v.  Atlanta 
St.  R  R.  Co.  49  Ga.  151.    §  140. 
Western  Union  R.  R.  v.  Fulton,  64 

IlL  271.    §  206. 
Western  Union  Tel.  Co.  v.  State,  62 

Tex.  630.    §§  170,  180. 
Westervelt  v.  Gregg,  12  N.  Y.  202. 
§480. 
V.  People,  20  Wend.  416.     §  405. 
'West  F.  R.  R  Co.  v.  Johnson,  5  How. 

(Miss.)  278.     §  107. 
West  Ham  Overseers  v.  lies,  L.  R.  8 
App.  Cas.  886.     §  218. 


Westinghausen  v.  People,  44  Micli. 

265.     §  405. 
W.  Phila.  R  R  Co.  v.  Union  R  R.  Co. 

9  Phila,  495.    §§  86,  90,  102. 
Weston    V.   Charleston,  2   Pet   401. 
§254 
V.  Supervisors,  44  Wis.  242.   §  3G4. 
West  River  Br.  Co.  v.  Dix.  16  Vt  440 ; 

6  How.  507.     §  473. 
Wetumpka  v.  Winter,   29  Ala.   Col. 

§247. 
Weyand    v.    Stover,    85    Kan.     545. 

§§48,98. 
Westerfield,   Ex  parte,  55  CaL  550. 

§§  123,  129. 
Wetherbee  v.  Dunn,  32  CaL  106.  §  299. 
Wetmore  v.  State,  55  Ala.  198.    g§  309, 
310. 
V.  Tiacy,  14  Wend.  250.    §  202. 
Wharton  v.  State,  5  Cold.  1.     §  1C6. 
Wheatley  v.  Lane,  1  Saund.  216.  §413. 
Wheaton  v.  Peters,  8  Pet  591.     §  458. 
Wheeler  v.  Chicago,  24  Hi  105.  §448. 
V.  Chubbuck,  10  111.  301.    §  lU.. 
V.  McCormick,    8     Blatch.     20  i. 

§§  218,  246,  428,  429. 
V.  MiUs,  40  Barb.  644.     §  456. 
V.  Philadelphia,  77  Pa.   St  33b. 

§§  121,  128,  198,  198. 
V.  Roberts,  7  Cow.  536.    §  168. 
V.  Winn,  53  Pa  St  122.     §  437. 
Whidden  v.  Drake,  5  N.  H.  18.   §  428. 

V.  Seelye,  40  Me.  247.     §  184. 
Whipley  v.  Mills,  9  Cal.  641.   §  454. 
Whipple    V.    Judge,   26    JNlich.    84o. 
§§  240,  383. 
V.  Williams,  4  How.  Pr.  208.  §  1 15. 
Whistler  v.  P^orster,  14  C.  B.  (N.  S.) 

248.     §  324 
Whithorn  v.  Evans,  2  East  135.  §  107. 
Whitcomb  v.  Rood,  104  Pa.  St  228. 
§284 
v.  Rood,  20  Vt  52.    §833. 
White  v.  Boot,  2  T.  R  274    §  137. 
v.  Crutcher,  1  Bush,  472.     §  112. 
V.  German  Ins.  Co.  15  Neb.  660. 

§118. 
V.  Hart    13    Wall  646.     §§  206, 
476. 


OASES   CITED. 


CXXV 


"White  V.  Haworth,  21  Mo.  App.  439. 
§§  111,  114. 
V.  Ivey,  34  Ga.  186.    §  275. 
V.  Jolmson,  23  Miss.  G8.     §§  139, 

202,  283,  287. 
V.  Lincoln,  City  of,   5  Neb.  505. 

§78. 
V.  NashvDle,     etc.    R  R   Co.    7 

Heisk,  515.     §  138. 
V.  Railroad     Co.    7    Heisk.    518. 

5^228. 

V.  Steam  Tug,  6  Cal.  462.     §  360. 

V.  White,  2  Met.  (Ky.)  185.  §  225. 

"Wliite  Co.  V.  Key,  30  Ark.  603.  §  441. 

Whited  V.  Lewis,  25  La.  Ann.  568. 

g§  31,  33,  103,  170. 
Whitehead    v.    Commonwealtli,     19 
Gratt.  640.     §  455. 
V.  Wells,  29  Ark.  99.     §  104. 
Whiteley  t.  Chappell,  L.  R  4  Q.  B. 

147.     §  431. 
Wliitesides  v.  Poole,  9  Rich.  68.  §297. 
White  W.  Valley  Canal  Co.  v.  Val- 

lette,  21  How.  414    §  385. 
Whitford  V.  Panama  R  R   Co.   23 

N.  Y.  465.     §  297. 
Whiting  V.  Mt.   Pleasant,   11   Iowa, 

482.     §§  87,  88,  101. 
Wlaitlock   V.    Casti-o,    22    Tex    108. 

.§  306. 
Whitman  v.  Hapgood,  10  Mass.  437. 

§206. 
Whitney   v.    Brtmette,   15  Wis.   61. 
§393. 
V.  Gauche,     11    La.    Ann.    432. 

§301. 
V.  Thomas,  23  N.  Y.  281.     §  456. 
V.  Whitney,  14  Mass.  298.  §§  240, 
436. 
Whittaker  v.  Canal  Co.  87  Pa  St.  34. 

§378. 
Whyte  V.  Mayor,  etc.  2  Swan,  364. 

§  384. 
Wieman  v.  Anderson,  42  Pa.  St  311. 

§338. 
Wiener   v.    Davis,    18    Pa.  St   331. 

§§  246,  370. 
Wight  V.  Warner,    1  Doug.  (Mich.) 
384.     §§  327,  391. 


Wiggin  V.  Peters,  1  Met  127.    §  111. 
Wiggins  F.  Co.  v.  Chicago  &  A.  R 

Co.  5  Mo.  App.  347.     §§  295,  306. 
Wilber  v.  Paine,  1  Ohio,  117.     §§  207, 

410,  427. 
Will)ur  V.  Crane,  13  Pick.  284.  §§  139, 

290. 
Wilcox  V.   Hemming,   58  Wis.    144. 
§170. 

V.  Jackson,  109  111.  261.     §  306. 

V.  State,  3  Heisk.  110.     §  138. 
Wilder  v.  Lumpkin,  4  Ga.  208.  §  206. 

V.  Maine  Cent    R   65    Me.   332. 
§  206. 

V.  Railway    Co.    70    Midi.    382. 
§119. 
AVilderman  v.  Baltimore,  8  Md.  551. 

§  164. 
Wiles  V.  Peck,  26  N.  Y.  47.     §  338. 
Wiley  V.  Yale,  1  Met  553.     §  325. 
WiKord  v.  State,  43  Ark.  62.     §  452. 
Wilkinson  t.  Adam,  1  Ves.  &  B.  466. 
§336. 

V.  Colley,  5  Burr.  2698.     §  435. 

V.  Leland,  2  Pet  657.    §§  194, 206, 
215,  240,  241,  245. 
Willard  v.  Conduit  10  Tex.  213.   §  192. 

T.  Fralick,  31  Mich.  431.     §§  207, 
392,  393. 

V.  Newburyi^ort,    12    Pick.    227. 
§380. 
Willcox    V.   Huggins,   Fitzg.    172;  2 

Str.  907.     §  424. 
Willets  V.  Jeffries,  5  Kan.  473.     §§  226, 

464. 
William  Gray,  Brig,  The,  1  Paine,  16. 

§355. 
Wilhams  v.  Beard,  1  Rich.  (N.  S.)  309. 
§286. 

V.  Bidleman,  7  Nev.  68.    §  129. 

V.  Bruffy.  90  U.  S.  176.     §  20. 

V.  Cammack,  27  Miss.  209.     §  75. 

V.  Cheney,  3  Gray,  215.    §  336. 

V.  Commissioner,    35    Me.    345. 

§11- 
V.  Ellis,  L.  R  5  Q.  B.  Div.  176. 

§§  241.  280. 
V.  Evans,  L.  R  1  Ex.  Div.  277. 
§259. 


CXXVl 


CASES   CITED. 


Williams  v.  Golding,  L.  R  1  C.  P.  69. 

§276. 
V.  Johnson,  Adm'x,  30  Md.  500. 

§206. 
V.  McDonal,  3  Pin.  331.    §§  219, 

242,  246,  423. 
V.  Middlesex,  4  Met.  76.    §§  163, 

165. 
V.  Newton,  14  Jil.  &  W.  757.   §  310. 
V.  People,  24  N.  Y.  405.    §§  103, 

120,  123. 
V.  People,  17  111.  App.  274.    §  215. 
V.  Peyton,  4  Wheat.  74     §  390. 
V.  Potter,  2  Barb.  316.     §§  138, 

189. 
V.  Pritchard,  4  T.  R.  2.    §§  157, 

158,  230. 
V.  Regina,  7  Q.  B.  250.    §  142. 
V.  Sangar,  10  East,  66.     §  362. 
V.  Smith,  4  H.  &  N.  559.    §§  206, 

482. 
V.  State,  67  Ga,  260.    g§  297,  300. 
V.  State,  64  Ind.  553.     §  298. 
V.  State,  6  Lea,  549.    §§  41,  43,  46. 
V.  State,  6  Blackf.  36.    §  363. 
V.  Swansea  C.  Nav.  Co.,  L.  R.  3 

Ex.  158.     §§  139,  213. 
V.  Tripp,  11  R.  I.  447.    §  364. 
V.  Wade,  1  Met.  82.    §  184. 
V.  Weaver,  94  N.  C.  134.    §  476. 
V.  Williams,  5  Ohio,  444    §  426. 
V.  WUliams,  8  N.  Y.  541.     §  184. 
Williamson  v.  Farrow,  1  Bailey,  611. 

§§  112,  253. 
V.  Field,  2  Sandf.  Ch.  533.     §  206. 
V.  Keokuk,  44  Iowa,  88.     §§  101, 

103. 
V.  New  Jersey,   130    U.    S.    189. 

§365. 
V.  Suydam,  6  Wall.  723.     §  194 
WilUamsport  v.  Commonwealth,  84 

Pa.  St  487.     §  345. 
Willing  V.  Bozman,  52  Md.  44   §  159. 
WUlingham   v.   Smith,  48    Ga.   580. 

§223. 
Willion    V.   Berkley,   1    Plowd.   236. 

§  333. 
Willison     V.    Watkins,     3    Pet    43. 
§368. 


Willmarth  v.  Crawford,  10  Wend^ 

342.    §  385. 
Willis  V.  Jelineck,  27  Minn.  18.  §480. 
V.  Owen,  43  Tex.  48.    §§  67,  317. 
V.  R.  R.  Co.  32  Barb.  398.    §§  364^ 

372. 
V.  R.  R  Co.  61  Tex.  432.    §  14 
V.  Thoi-p,    L.    R    10  Q.   B.   383. 

§275. 
Wills  V.  Audi,  8  La  Ann.  19.    g  390. 
V.  Russell,  100  U.  S.  621.     ^§  255,. 

261. 
Wilson  V.  Arnold,  5  Mch.  98.  §§  207, 

393,  401. 
V.  Biscoe,  11  Ark.  44.  §§  215,  239. 
V.  Booth,  57  Mich.  249.     §  375. 
V.  Buckman,  13  Minn.  441.  §  206. 
V.  Carson,  12  Md.  54    §§  190, 102. 
V.  Hahfax,  L.  R  3  Ex.  114  §§  243, 

262. 
V.  Herbert,  41  N.  J.  L.  454  §  226. 
V.  Knubley,  7  East,  128.     §§  196, 

212. 
V.  Lewis,  10  R.  I.  285.    §  428. 
V.  Nightingale,    8     Q.    B.     1034 

§§  219,  245. 
V.  Ohio,  etc.  R'y  Co.  64  IlL  542. 

465,  466. 
V.  Pahner,  75  N.  Y.  250.     §  454 
V.  Rastall  4  T.  R.  757.     §  333. 
V.  Shorick,  21  Iowa,  332.     g  203. 
V.  Smith,  5  Yerg.  379.    §§  190,. 

295. 
V.  Spauldmg,  19  Fed.  Rep.  304 

§§210,211. 
V.  State  Bank,  3  La.  Ann.   196. 

§448. 
V.  Wall,  34  Ala.  288.    §  480. 
V.  Wentworth,    25     N.     H.    347. 

§350. 
V.  West  Hartlepool  Co.  2  De  G. 

J.  &S.  475.    §427. 
WUton  V.  Chambers,  7  Ad.  «&  E.  532. 

§307. 
Wimbish  v.  TaUbois,  1    Plowd.  38. 

§413. 
Winchester's  Case,  3  Rep.  4.    §  419. 
Winchester  v.  Cain,  1  Rob.  (La.)  42L 
§420. 


CASES   CITED. 


CXXVU 


"Windliam  v.  Chetvvynd,  1  Burr.  419. 

§307. 
Windsor   v.    China,    4  GreenL   298. 

§§  HI,  112. 
Wing  V.  Benham,  76  Iowa,  17.    §  376. 
Winn  V.  Ficklan,  54  Ga.  529.     §  340. 

V.  Jones,  6  Leigh,   74.     §§   156, 
161. 
Winona  v.  Whipple,  24    Minn.    61. 

§260. 
Winona,  etc.  R.  R  Co.  v.  Barney,  113 

U.  S.  618.      §  379. 
Winooski  v.  Gokey,  49  Vt  282.  §  198. 
Winslow  V.   Kimball,    25    Me.    493. 

§§  234,  436. 
Winter    v.    Dickerson,    42    Ala.   92. 
§168. 

V.  Jones,  10  Ga.  190.     §§  237, 331, 
332. 

V,  IMoutgoraery,     65     Ala.    403. 
§331. 
Winterfield  v.   Stauss,   24  Wis.  394 

§§  252,  255. 
Wis.  Cent.  R  R  Co.  v.  Taylor  Co.  52 

Wis.  37.    §  300. 
Wisconsin  Telephone  Co.  v.  Oshkosh, 

63  Wis.  32.     g§  306,  383. 
Wise  V.  Bigger,  79  Va.  369.    §§  41, 43, 
44,  45,  46. 

V.  State,  34  Ga.  348.     §  452. 
Wishmier  v.  State,  97  Ind.  160.  i§  93, 

95. 
WiswaU  V.  Hall,  3  Paige,  313.    §  379. 
Witherspoon  v.  Dunlap,  1    McCord, 

516.     §  341. 
Witkouski  v.  Witjiouski,  16  La.  Ann. 

232.    §168. 
Wolcott  V.  Des  Moines  Co.  5  Wall. 
681.    §379. 

V.  Pond,  19  Conn.  597.    §§  207, 
443. 

V.  Wigton,  7  Ind.  44.     §  66. 
Wohlscheid  v.  Bergarth,  46  IMich.  46. 

§  107. 
Wolf  V.   Lowry,   10    La.   Ann.    272. 

§314. 
Wolfe    V.   Henderson,   28   Ark.   304. 
§§  164.  1G7. 

V.  McCaull,  76  Va.  87a    §  56. 


Wolff  V.  New  Orleans,  103  U.  S.  35a 
g  475. 

V.  Oxholm,  6  M.  &  S.  99.    §  12. 
WolfkeU   V.  Mason,  16  Abb.  Pr.  221. 

§476. 
WoLsey  v.  Chapman,  101  U.  S.  755. 

§379. 
Womack  v.  Womack,  17  Tex.  1.  §  482. 
Womelsdorf  v.  Heifuer,  104  Pa.  St  1. 

§  398. 
Wood's  Case,  1  Co.  40a.    §  228. 
Wood,  Ex  parte,  34  Kan.  645.     §§  102. 

103. 
Wood,  In  re,  L.  R.  7  Ch.  306.     §  256. 
Wood  V.  Bank,  9  Cow,  194.     §  204. 

V.  Chapin,  13  N.  Y.  509.     §  449. 

V.  Commonwealth,  11  Bush,  220. 
§112. 

V.  Election  Com'rs,  58  Cal.  561. 
§  157. 

V,  Kennedy,  19  Ind.  68.     §§  166, 
474. 

V.  Mayor,  etc.  34  How.  Pr.  501. 
§480. 

V.  Oakley,  11  Paige,  400.     §  464. 

V,  Rowcliffe,  6  How,  191,     §  210. 

V.  State,  47  Ark.  488.     §  154.    • 

V.  United    States,    16    Pet    342. 
§§  138,  152,  361. 
Woodard    v.    Brien,     14    Lea,    520. 

§§  119,  124. 
Woodbuiy  v.  Berry,  18  Ohio  St  456. 

§§  237,  261,  332. 
Woodman  v.   Fulton,   47  Miss.  682. 

§479. 
Wood  Mowing,  etc.  Co.  v.  Caldwell, 

54  Ind.  276.     §§  300,  333. 
Woodrow  V.  O'Conner,   28  Vt  776. 

§184. 
Woodruff     V,     State,     3    Ark.    285. 

§§  218,  410,  411,  412. 
Woods  V.  Buie,  5  How.  (Miss.)  285. 
§  10. 

V.  Jackson    Co.   1   Holmes,   379. 
§  138. 

T.  state,  36  Ark.  36.     §  354. 

V.  AVicks,  7  Lea,  40.     §  12. 
Woodstock  V.   Hooker,  6  Conn.  35, 

S  100. 


CXXVUl 


CASES    CITED. 


"Woodward  v.  Chicago,  eta  R  Co.  21 
Wis.  309.    §  306. 
V.  Donally,  27  Ala.  196.     §  12. 
V.  Foxe,  3  Lev.  289 ;  2  Vent.  187. 

§  439. 
V.  London,  etc.  R'y  Co.  3  Ex.  Div. 

121.    §265. 
v.  R'y  Co.  23  Wis.  400.     §  371. 
Woodworth  v.  Paine's  Adm'r,  Breese 
(111.),  374.     §  279. 
V.  Spaflfords,  2  McLean,  175.  §§  22, 

185. 
V.  State.  26  Ohio  St.  196.     §§  219, 
279. 
Wooley  V.  Watkins,  22  Pac.  Rep.  102, 

§468. 
Woolheather  v.  Risley,  38  Iowa,  486. 

§  377. 
Woolsey  v.  Cade,  54  Ala.  378.    §§  255, 

256. 
Worcester  Bank  v.  Cheney,  94  111. 

430.     §  298. 
Worcester,   etc.  R.  R   Co.   v.  R.  R. 

Cora'rs,  118  Mass.  561.     g  388. 
Workingmen's  Bank  v.  Converse,  33 

La,  Ann.  963.     g  296. 
Workingmen's     Building     Asso.    v. 
Coleman,  89  Pa.  St.  428.     g  456. 
Wormley  v.  Hambui'g,  40  Iowa,  25. 

§469. 
Worthen    v.   Badgett,   32   Ark.   496. 
g§  41,  46,  183. 
V.  Ratchffe,  42  Ark.  330.     §  164. 
Worthley  v.  Steen,  43  N.  J.  L.  542. 

§127. 
Wright,  In  re,  L.  R  3  Ch.  Div.  78. 

§256. 
Wright  V.  BoUes  Woodenware  Co.  50 
WLs.  167.     §  353. 
V.  Bolton,  8  Ala.  548.     §  439, 
V.  Dalafield,  23  Barb.  498.     §  184. 
V.  Defrees,  8  Ind.  298.     §  330. 
V.  Forrestal,  65  Wis.  341,    §§  114, 

229,  309, 
V.  Frant,  4  B.  &  S.  118.     §  261, 
V,  Hale,  6  H.  &  N.  227.    §§  206, 482. 
V,  Hammer,  5  Md.  375.     §  434, 
V.  Hawkins,  28  Tex.  452.    §§  198, 
298. 


Wright  V,  Nagle,  101  U,  S.  791.  §  378. 

V.  Oakley,   5  Met  400,     §§   184, 
156, 

V,  Phillips,  2  Greene  (Iowa),  191. 
§298, 

V.  Sperry,  21  Wis.  331.     ?  448. 

V.  Williams,  1  M.  &  W.  99.   §  246. 
Wroughton  v.  Turtle,  11  M.    &  W. 

561.     §  362. 
Wulftange  v.  McCoUom,  83  Ky.  361. 

§102. 
Wyandotte  v.  Drennan,  46  Mick  478. 

§  473. 
Wynehamer  v.  People,  43  N.  Y.  378. 

§§  172,  370, 
Wynkodp  v.  Cooch,  89    Pa.  St.  450, 

§1-0. 
Wynne,  In  re,  Chase's  Dec.  227.  §  110. 
Wynne  v.   Middleton,   1    Yv'ils.    125. 
g§  208,  444. 

V.  Wynne,  2  Swan,  405.     §  480. 
Wyth  V.  Blackman,   1  Ves.  Sr.  197. 

§253. 
Wythe  V.   Thui"ston,  2  Ambler,  555. 

§253. 

Yale  V.  Dederer,  18  N.  Y.  271.     §  338. 
Yates'  Case,  4  John.  318.    §  256. 
Yates  V.  Lansing,  9  Jolin.  395.     §  342. 
Yazoo  R  R  Co.  v.  Thomas,  132  U.  S. 

174     §§  212,  364. 
Yeager  v.  Weaver,  64  Pa   St.   425. 

§g  78,  86,  87,  210. 
Yeaton  v.  United  States,  5  Cr.  281. 

§§  163,  164,  165,  166,  467. 
Yell  V.  Lane,  41  Ark.   53,     §  299, 
YeUow  River  Imp't  Co,  v.  Arnold,  46' 

Wis.  214.     §§  93,  97,  101,  193, 198, 
Yerby  v.  Lackland,  6  Har,  &  J.  446, 

§g  391,  392, 
Yerger,  Ex  parte,  8  W^all.  85.     §  327. 
York's  Appeal,   100  Pa.   St   69;    17 

W.  N.  C.  33.     §  315. 
York,  etc.  R'y  Co.  v.  The  Queen,   1 

E.  &  B,  858,     §  235. 
Young  V.  Bank  of  Alexandria,  4  Cr. 
384.     §  193. 

V.  Beardsley,  11  Paige,  93.    §§  201,. 
229. 


CASES   CITED. 


CXXIX 


Young  V.  Crattridge,  L.  R.  4  Q.  B.  106. 
§281. 

V.  Higgon,  6  M.  &  W.  49.     §§  111, 
113. 

V.  Hughes,  4  H.  &  N.  76.     §  206. 

V.  McKenzie,  3  Ga,  40.  §§  290,  366. 

V.  Martin,  2  Yeates,  313.    §  390. 
Yoiingblood  v.  Sexton,  23  Mich.  406. 

§143. 
Youngs  V.  Ransom,  31  Barb.  49.  §  296. 
Yung  Jon,  Ex  parte,  28  Fed.  Rep.  308. 

§93. 


Zander  v.  Coe,  5  Cal.  230.    §  39.1 
Zeigler  v.   Gaddis,  44  N.  J.  L.   363. 
§§  128,  130. 
V.  South,  etc.  R  R.  Co.  58  Ala. 
594.     §  331. 
Zimmerman  v.  Hclser,  32  JId.  274. 
§190. 
V.  Perkiomen,  etc.  Co.  81*  Pa.  St 
96.    §  168. 
Zouch  V.  Empsey,  4  Bam.  &  Aid.  522. 

§112. 
Zum  V.  Woedel,  113  Pa.  St  386.  §  338. 


< 


PART  FIRST. 

THE  ENACTMENT,  DURATION  AND  PROOF  OF  STAT- 
UTORY LAWS. 


CHAPTER  I. 

THE  LEGISLATIVE  POWER  AS  DISTINGUISHED  FROM  OTHER 
SOVEREIGN  POWERS,  AND  THE  GENERAL  NATURE  OF  STAT- 
UTORY LAW. 


§  1.  Order  of  subjects. 
2.  The  legislative  a  distinct  power. 

6.  The  nature  of  legislative  power. 

7.  Statutory  laws,  in  general 
9.  Rules  of  action. 

10.  Legislative  rules  of  action  —  Es- 
sential limitations. 

12.  Statutes  have  no  extraterritorial 
effect. 


§  14.  Extraterritorial     operation    of 

laws  in  colonization  of  a  new 

country. 

17.  English  statutes  passed  after  the 

establishment  of  the  coloniea 

19.  Continuance  of  laws  on  change 

of  sovereignty. 

20.  Laws  of  states  in  rebellion. 

21.  Federal  and  state  statutes. 
23.  Territorial  statutes. 


§1.  The  order  of  subjects. —  The  elementary  nature  of 
statutory  law;  the  source  and  extent  of  its  authority;  the 
process  of  enactment ;  its  commencement  and  duration,  and 
the  mode  of  proving  it,  when  necessary,  are  subjects  which 
naturally  precede  any  consideration  of  the  legal  principles  by 
which  courts  determine  its  meaning,  construction  and  effect. 
Therefore,  this  order  and  sequence  of  topics  will  be  pursued. 

§  2.  The  legislative  a  distinct  power. —  In  our  republican 
system  a  written  constitution  is  the  great  charter  by  which 
the  sovereign  pe9ple  establish  and  maintain  government,  de- 
fine, distribute  and  limit  its  powers.  It  is  the  organic  and 
paramount  law. 

In  the  federal  constitution,  and  in  the  state  constitutions, 
the  three  fundamental  powers  —  the  legislative,  executive  and 
judicial  —  have  been  separated,  organized  in  three  distinct  de- 
partments. This  separation  is  deemed  to  be  of  the  greatest 
importance ;  absolutely  essential  to  the  existence  of  a  just  and 


L'^GISLATIYE    POWEK,  ETC. 


free  government.' 
to  make 


This  is  not,  however,  such  a  separation  as 
these  departments  wholly  independent ;  bnt  only  so 


1  About  the  middle  of  the  last  cen- 
tury Baron  Montesquieu  uttered 
words  of  wisdom  to  patriots  and 
statesmen.  He  said  :  "  When  the  leg- 
islative and  executive  powers  are 
united  in  the  same  person,  or  the 
same  body  of  magistrates,  tliere  can 
be  no  liberty,  because  appreliensions 
may  arise,  lest  the  same  monarch  or 
senate  should  enact  tyrannical  laws, 
to  execute  them  in  a  tyrannical  man- 
ner. Again,  there  is  no  liberty  of  the 
judiciary  power  if  it  be  not  separated 
from  the  legislative  and  executive. 
Were  it  joined  with  the  legislative, 
the  life  and  liberty  of  the  subject 
would  be  exposed  to  arbiti-ary  con- 
trol; for  the  judge  would  be  the 
legislator.  Were  it  joined  to  the  ex- 
ecutive power,  the  judge  might  be- 
have with  violence  and  oi:)pression. 
There  would  be  an  end  of  every- 
tliing  were  the  same  man,  or  the 
same  body,  whether  of  nobles  or  of 
the  people,  to  exercise  these  three 
powers  —  that  of  enacting  laws,  that 
of  executing  the  public  resolutions, 
and  of  trying  the  causes  of  individ- 
uals."   Sphit  of  Laws,  B.  11,  ch.  VI. 

Dr.  Paley  remarks  in  his  Moral 
Pliilosophy,  B.  6,  cli.  8:  "The  first 
maxim  of  a  free  state  is  that  the 
laws  be  made  by  one  set  of  men,  and 
administered  by  another;  in  other 
words,  that  the  legislative  and  judi- 
cial characters  be  kept  separate. 
When  these  ofifl^ces  are  united  in  the 
oame  person  or  assembly,  particular 
laws  are  made  for  particular  cases, 
springing  oftentimes  from  partial 
motives,  and  directed  to  private  ends. 
"W^iilst  they  ai'e  kept  separate  gen- 
eral laws  are  made  by  one  body  of 
men,  without  foreseeing  whom  they 
may  affect;  and  when  made,  they 
must  be  appUed  by  the  other,  let 
them  affect  whom  they  will." 


Blackstone,  in  Ms  Commentaries 
(voL  1,  146),  says :  "  In  aU  tyrannical 
governments  the  supreme  magis- 
tracy, or  the  right  both  of  making 
and  of  enforcing  laws,  is  vested  in 
the  same  man,  or  one  of  the  same 
body  of  men;  and  whenever  these 
two  powers  are  united  together, 
there  can  be  no  pubhc  liberty.  The 
magisti'ate  may  enact  tyrannical 
laws  and  execute  them  in  a  tyran- 
nical manner,  since  he  is  possessed, 
in  quality  of  dispenser  of  justice,  with 
aU  the  power  wliich  he  as  legislator 
tliinks  proper  to  give  liimself.  But 
when  the  legislative  and  executive 
authority  are  in  distinct  hands,  the 
former  wiU  take  care  not  to  intrust 
the  latter  with  so  large  a  power  as 
may  tend  to  the  subversion  of  its 
own  independence,  and  therewith  of 
tlie  liberty  of  the  subject." 

He  also  says  in  another  part  of  liis 
Commentaries  (vol.  1,  269) :  "  In  this 
distinct  and  separate  existence  of  the 
judicial  power  in  a  peculiar  body  of 
men,  nominated  indeed,  but  not  re- 
movable at  pleasm-e  by  the  crown, 
consists  one  main  presei-vative  of  the 
public  hberty,  which  cannot  subsist 
long  in  any  state  vmless  the  adminis- 
tration of  common  justice  be  in  some 
degree  separated  both  from  the  legis- 
lative and  also  from  the  executive 
power.  Were  it  joined  with  the  leg- 
islative, the  life,  liberty,  and  property 
of  the  subject  would  be  in  the  hands 
of  ai'bitrary  judges,  whose  decisions 
would  be  then  regulated  only  by  their 
own  opinions,  and  not  by  any  funda- 
mental principles  of  law;  whicli, 
though  legislators  may  depart  from, 
yet  judges  are  bomid  to  observe. 
Were  it  joined  with  the  executive, 
this  union  might  soon  be  an  over- 
balance for  the  legislative." 

In  Dash  v.  Van  Kleeck,  7  Jolm.  508, 


LEGISLA'nVE    POWER,  ETC.  6 

that  one  department  shall  not  exercise  the  power  nor  perform 
the  functions  of  another.  They  are  mutually  dependent,  and 
could  not  subsist  without  the  aid  and  co-operation  of  each 
other.  Under  the  constitutions  the  legislature  is  empow^ered 
to  make  laws ;  it  has  that  power  exclusively ;  the  executive 
has  the  power  to  carry  them  by  all  executive  acts  into  effect, 
and  the  judiciary  has  the  exclusive  power  to  expound  them  as 
the  law  of  the  land  between  suitors  in  the  administration  of 
justice.  The  legislature  can  do  no  executive  acts,  but  it  can 
legislate  to  regulate  the  executive  office,  prescribe  law^s  to  the 
executive  which  that  department,  and  every  grade  of  its  offi- 
cers, must  obey.  The  legislature  cannot  decide  cases,  but  it 
can  pass  law^s  which  will  furnish  the  basis  of  decision,  and  the 
courts  are  bound  to  obey  tliem.^  The  functions  of  each  branch 
are  as  distinct  as  the  stomach  and  lungs  in  our  bodies.  They 
are  intended  to  co-operate;  not  to  be  antagonistic;  they  are 
functions  in  the  same  system ;  when  each  functionary  does  its 
appropriate  work  no  interference  or  conilict  is  possil)le.- 

§  3.  A  distinguished  writer  and  jurist  says :  "  When  we 
speak  of  a  separation  of  the  three  great  departments  of  the 
government,  and  maintain  that  that  separation  is  indispensable 
to  public  liberty,  w^e  are  to  understand  this  maxun  in  a  lim- 
ited sense.  It  is  not  meant  to  affirm  that  they  must  be  kept 
W' holly  and  entirely  separate  and  distinct,  and  have  no  com- 
mon link  of  connection  or  dependence,  the  one  upon  the 
other,  in  the  slightest  degree.  The  true  meaning  is,  that  the 
whole  power  of  one  of  these  departments  should  not  be  exer- 
cised by  the  same  hands  which  possess  the  whole  power  of 
either  of  the  other  departments;  and  that  such  exercise  of 
the  W'hole  w^ould  subvert  the  principles  of  a  fi'ce  constitu- 
tion. This  has  been  shown  with  great  clearness  and  accu- 
racy by  the  author  of  the  Federalist.'  It  was  obviously  the 
view  taken  of  the  subject  by  Montesquieu  and  Blackstone 
in  their  commentaries ;  for  they  were  each  speaking  with  ap- 
probation of  a  constitution  of  government  which  embraced 
this  division  of  powers  in  a  general  view";  1)ut  which  at  the 

Kent,  C.  J.,  speaking  of  the  legisla-  ^  Smith  v.  Judge,  17  CaL  557. 

tive  and  judicial  powers,  said :  "  It  is  a  2  Reiser    v.   The  Wm.   Tell    S.   F. 

weU-setUod  axiom  that  the  union  of  Asso.  39  Pa.  St  147. 

these  two  powers  is  tj'rauuy."    Fed-  ^  Federalist,  No.  42. 

eralist,  No.  47. 


4:  LEGISLATIVE    POWER,  ETC. 

same  time  established  an  occasional  mixture  of  each  with  the 
others,  and  a  mutual  dependency  of  each  upon  the  others. 
The  slightest  examination  of  the  British  constitution  w411  at 
once  convince  us  that  the  legislative,  executive  and  judiciary 
departments  are  by  no  means  totally  distinct  and  separate 
fi'om  each  other.  The  executive  magistrate  forms  an  integral 
part  of  the  legislative  department ;  for  parhament  consists  of 
king,  lords  and  commons ;  and  no  law  can  be  passed  except  by 
the  consent  of  the  king.  Indeed,  he  posseses  certain  prerog- 
atives, such  as,  for  instance,  that  of  making  foreign  treaties, 
by  which  he  can  to  a  limited  extent  unpart  to  them  a  legisla- 
tive force  and  operation.  He  also  possesses  the  sole  appointing 
power  to  the  judicial  department,  though  the  judges,  when 
once  appointed,  are  not  subject  to  his  w^ill  or  power  of  re- 
moval. The  house  of  lords  also  constitutes  not  only  a  vital 
and  independent  branch  of  the  legislature,  but  is  also  a  great 
constitutional  councO  of  the  executive  magistrate,  and  is  in 
the  last  resort  the  highest  appellate  judicial  tribunal.  Again, 
the  other  branch  of  the  legislature,  the  commons,  possess  in 
some  sort  a  portion  of  the  executive  and  judicial  power,  in  ex- 
ercising the  power  of  accusation  by  impeachment ;  and  in  this 
case,  as  also  in  the  trial  of  peers,  the  house  of  lords  sits  as  a 
grand  court  of  trial  for  public  offenses.  The  powers  of  the 
judiciary  department  are  indeed  more  narrowly  confined  to 
their  own  proper  sphere.  Yet  still  the  judges  occasionally  as- 
sist in  the  deliberations  of  the  house  of  lords  by  giving  their 
opinion  upon  matters  of  law  referred  to  them  for  advice ;  and 
thus  they  may,  in  some  sort,  be  deemed  assessors  to  the  lords  in 
their  legislative  as  well  as  judicial  capacity."  ^  As  co-ordinate 
branches  of  one  government  they  are  poUtically  connected  and 
bound  together ;  but  their  powders  and  functions  are  not  blended ; 
they  occupy  no  common  ground,  nor  do  they  exercise  any  con- 
current jurisdiction. 

To  some  extent,  and  for  certain  purposes,  the  powers  appro- 
priate in  their  nature  to  one  department  are  exercised  by  each  of 
the  others ;  sometimes  by  express  direction  of  the  supreme 
law ;  but  otherwise  only  w^hen  it  is  done  incidentally  or  as  a 
means  of  exercising  its  ow^n  proper  power.^ 

1  Story  on  Const.  §  525,  kins    v.    Holman,    16    Pet    60,    61 ; 

« Taylor  v.  Place,  4  R.  L  324 ;  Wat-    Wayman  v.  Southard,  10  Wheat  1, 


LEGISLATIVE    POWER,  ETC.  D 

§  4.  The  whole  legislative  power  delegated  to  tlie  federal 
government  is  vested  in  congress,  with  the  exceptions  made  in 
the  constitution,  as  in  the  instance  of  making  treaties.  Con- 
gress has  only  enumerated  powers ;  the  residue  is  retained  by 
the  states,  and  is  vested  by  their  constitutions  in  their  legisla- 
tures, subject  to  restrictions  and  limitations  in  the  federal  con- 
stitution and  that  of  the  particular  state.  In  creating  a  legis- 
lative department  of  a  state  government,  and  conferring  upon 
it  the  legislative  power,  the  people  must  be  understood  to  have 
conferred  the  full  and  complete  power  as  it  rests  in,  and  may 
be  exercised  by,  the  sovereign  power  of  any  country,  subject 
only  to  such  restrictions  as  they  may  have  seen  fit  to  impose, 
and  to  the  Umitations  which  are  contained  in  the  constitution 
of  the  United  States.'  So  all  the  executive  power  which  caji 
be  exercised  is  vested  in  the  executive  department,  and  all  the 
operative  judicial  power  in  the  judiciary  department.'^ 

§  5.  The  power  which  is  entu'ely  and  exclusively  vested  in 
the  judiciary  department  is  the  power  conferred  on  judicial 
courts  and  tribunals  to  administer  punitive  and  remedial  jus- 
tice to  and  between  persons  subject  to,  or  claiming  rights 
under,  the  law  of  the  land.  The  exercise  of  this  power  in- 
cludes invariably  actor,  reus  and  judex,  regular  allegations, 
opportunity  to  answer,  and  a  trial  according  to  some  settled 
course  of  judicial  proceedings.  It  is  part  of  this  judicial  power 
to  determine  what  the  law  is ;  and  all  questions  involving  the 
validity  and  effect  of  statutes  when  thus  determined  are  au- 
thoritatively settled.* 

§  6.  The  legislative  power. —  It  results  from  this  division 
of  the  fundamental  powers  that  the  legislature  is  confined  to 
the  exercise  of  the  law-making  power ;  its  sole  function  is  the 
enactment  of  laws.     Kone  of  these  great  powers  are  defined 

42;   The    Auditor  v.  Atcliison,  etc.  465;  Taylor    v.   Porter,  4  IIiU,  146; 

R  R.  Co.  6  Kans.  500 ;  s.  C.  7  Am.  Vanzaiit    v.   Waddel,    2  Yorg.   260 ; 

R.  575 ;  Fliut,  etc.  P.  R.  Co.  v.  Wood-  State  Bank  v.  Cooper,  id.  599 ;  Jones' 

Inill,  25  Mich.  99.  Heus  v.  Perry,  10  id.  59 ;  Greene  v. 

iCooley's  Const  Lim.  (4th  ed.)  100;  Briggs,  1  Curtis,  311 ;  State  v.  Dews, 

DonneU  v.  State,  48  Miss.  661 ;  Gov-  R,  M.  Chai-lt  400 ;  Seai-s  v.  CottreU.  5 

eruor  v.   McEwen,   5   Hunipli.   241;  Midi.  254.    See  Smith  v.  Judge,  17 

Knoxville,  etc.  R  R  Co.  v.  Hicks,  9  Cal.  558 ;  State  v.  Dexter,  10  R  I.  341 ; 

Baxt  442.  Mui-ray's  Lessee  v.  Hoboken,  etc.  Co. 

2  Taylor  v.  Place,  4  R  I.  324  18  How.  272. 

^Shumway   v.  Bennett,  29   Mick 


6 


LEGISLATIVE    POWER,  ETC. 


in  constitutions.  They  are  distributed  by  name,  and,  therefore, 
their  scope  and  limits  have  to  be  determined  from  their  in- 
trinsic nature.  They  are  deemed  thus  sufficiently  distinguish- 
able. A  state  legislature,  by  this  grant  of  legislative  power, 
is  vested  with  all  power  which  is  of  that  nature,  whether  it 
had  been  exercised  wholly,  by  the  parhament  of  Great  Britain, 
or  in  part,  by  prerogative,  by  the  crowm.^  As  legislative 
power  is  merely  a  power  to  make  laws,  its  nature  may  be  in- 
ferred from  the  definition  of  statutory  law ;  for  a  statute  form- 
ulates whatever  is  resolved,  ordained  or  enacted  by  the  forms 
of  legislation  in  the  exercise  of  that  power. 

§  7.  Statutory  law,  iu  general. —  A  statute  is,  in  a  general 
sense,  the  written  w^ill  of  the  legislature  rendered  authentic  by 
certain  prescribed  forms  and  solemnities,'-  prescribing  rules  of 
action  or  civil  conduct.^     This  is  comprehensive  as  applied  to 


1  In  Merrill  v.  Sherburne,  1  N.  H. 
203,  WcoJbmy,  J.,  said:  "No  par- 
ticular definition  of  judicial  power  is 
given  in  the  constitution,  and  consid- 
ering the  general  natiu'e  of  tlie  instru- 
ment none  was  to  be  expected. 
Critical  statements  of  the  meanings 
in  which  all  important  words  were 
to  be  employed  would  have  swollen 
into  volumes ;  and  when  these  words 
possessed  a  customary  signification  a 
definition  of  them  would  have  been 
useless." 

Lowi-ie,  C.  J.,  in  Reiser  v.  The 
WiUiam  TeU  Saving  Fimd  Associa- 
tion, 39  Pa.  St.  146,  said :  "  We  must 
again  insist  that  the  making  of  laws 
and  the  apphcation  of  them  to  cases 
as  they  arise  are  clearly  and  essen- 
tially diiferent  fimctions,  and  that 
one  of  them  is  allotted  by  the  consti- 
tution to  the  legislature  and  the 
other  to  the  courts.  9  Casey,  495. 
Chief  Justice  Gibson  expressed  tliis 
in  Greenough  v.  Greenough,  1  Jones, 
494:  'Every  tjTO  or  sciolist  knows 
that  it  is  the  f)rovince  of  the  legisla- 
ture to  enact,  of  the  judiciary  to  ex- 
I)Ound,  and  of  the  executive  to  en- 
force.' " 

In  IVIaynard  v.    Valentine,  1    W. 


Coast  Eep.  848,  Greene,  C.  J.,  speaking 
of  the  distinction  between  legislative 
and  judicial  functions,  said:  "It 
could  not  be  destroyed  without  de- 
struction of  one  or  the  other  fmic- 
tion.  For  it  consists  in  diversity  of 
the  deep-seated  organic  relations 
which  court  and  legislature  respect- 
ively bear  to  the  central  sovereignty 
wliich  speaks  and  acts  thi-ough  them. 
The  sovereign,  thi'ough  the  legislative 
organ,  sj^eaks  spontaneously,  and 
imposes  on  that  organ  no  obhgation 
to  reply  to  any  petition.  It  speaks 
through  its  courts  upon  petition 
only,  and  obhges  its  coiu-ts  to  answer 
every  petition.  The  voice  of  the 
covn-t  is  explanatory,  and  assertative 
of  that  of  the  legislature ;  the  voice 
of  the  legislatm-e  is  determinative  of 
that  of  the  court.  Legislatures  de- 
clare about  persons  and  things  in 
general,  and,  in  particular,  what  the 
sovereign  will  is.  Coui'ts  declare 
what,  according  to  that  will,  the 
parties  before  them  are  boimd  or  free 
to  do  or  sufl'er.  In  fine,  the  legisla- 
ture gives,  and  the  court  appUes,  the 
law."    2  Wash.  T'y,  3. 

2 1  Kent's  Com.  447. 

3 1  Black.  Com.  44. 


LEGISLATIVE    POAVERj  ETC.  i 

persons.  "  Statute  law  may,  we  think,"  says  Wilberforcc,  "  be 
[)roperly  deliued  as  the  will  of  the  nation  expressed  l>y  the 
legislature,  expounded  by  the  courts  of  justice.  The  legisla- 
ture, as  the  re})resentative  of  the  nation,  expresses  the  national 
will  by  means  of  statutes.  These  statutes  are  exi)oun(led  by 
the  courts  so  as  to  form  the  body  of  the  statute  law."  '  Mr. 
Austin  says :  "  A  law  in  the  literal  and  proper  sense  of  the 
word  may  be  defined  as  a  rule  laid  down  for  the  guidance  of 
an  intelhgent  being  by  an  intelligent  being  having  power  over 
hhn."  ^  He  also  says :  "  Legislative  powers  are  powers  of  es- 
tablishing laws  and  issuing  other  commands."  '^ 

In  what  capacity  does  a  legislature  act  in  issuing  other  com- 
mands? In  other  words,  in  what  other  way,  or  to  what  other 
end,  may  "  legislative  powers "  act  or  issue  commands  than 
to  establish  laws?  It  would  seem  to  be  a  truism  that  the  prod- 
uct of  law-making  is  law.  The  foregoing  definitions  confine 
law  to  persons.  If  it  is  so  confined,  then  the  legislature  in  the 
exercise  of  the  law-making  or  legislative  power  may  not  legis- 
late in  regard  to  things.  Nor  should  those  doctrines  and  prin- 
ciples which  have  been  accepted  as  part  of  the  common  law, 
relating  to  things,  be  regarded  as  law.  The  truth  is  that  law 
is  a  rule,  not  necessarily  a  rule  of  conduct,  though  a  rule  of 
conduct  is  a  law  —  a  branch,  not  the  whole  of  it.  As  a  rule 
a  statute  may,  besides  prescribing  a  rule  of  civil  conduct  to 
sentient  subjects,  create  or  establish  legal  qualities  and  rela- 
tions, operating  as  a  fiat.  Statutes  may  be  institutive,  creat- 
ino-  and  oroanizina:  le^'al  entities  and  endowing  them  with 
qualities  and  powers  —  for  example,  pubUc  and  private  corpo- 
rations. They  create  offices,  courts,  and  other  governmental 
agencies;  they  define  crimes  and  torts;  property,  corporeal 
and  incorporeal ;  titles,  contracts ;  prescribe  remedies  and  pun- 
ishments ;  they  impart  a  legal  vitality  to  and  regulate  aU  the 
minutia  of  civil  polity,  including  every  social  and  business 
relation  or  institution  deemed  conducive  to  the  well-being  and 
happiness  of  the  governed.'' 

§  8.  As  a  rule  for  persons,  it  is  not  a  transient,  sudden  order 
from  a  superior  to  or  concerning  a  particular  person,  but  some- 

Uvub.  st.L.  8.  -'ici^aao. 

^Austin's  Jurisprudeuce,  vol.  1,  p.  3,        ••License  Cases,  5  How.  504,  oSU; 
§  3.  Mauu  V.  lUiuois,  94  U.  S.  113,  125. 


LEGISLATIVE    POWER,  ETC. 


thing  permanent,  uniform  and  universal.^  It  is  a  rule,  because 
not  merely  advisory,  but  imperative ;  it  emanates  from  the  su- 
preme power  as  a  command,  and  does  not  depend  for  effect 
on  the  approval  or  consent  of  its  subjects ;  it  is  a  rule  of  ciml 
conduct,  because  it  does  not  extend  into  the  subjective  domain 
of  morals  or  religion ;  it  is  prescribed,  and  therefore  operates 
prospectively,  though  it  may  under  certain  circumstances  and 
lunitations  operate  retrospectively,  as  will  be  seen  hereafter.^ 
It  is  permanent,  uniform  and  universal,  not  in  the  sense  of 
being  irrepealable  or  necessarily  operating  upon  aU  the  per- 
sons and  things  within  the  jurisdiction  of  the  legislature,  but 
because  a  law  in  general  has  a  continuing  effect  and  operates 
impartially  throughout  the  state  or  some  district  of  it,  or  upon 
the  whole  or  a  class  of  the  pubhc.^ 


1 1  Black.  Com.  44 

2Seepos^,  ck  XVII. 

3  In  Slack  v.  MaysviUe,  etc.  R.  R. 
Co.  13  B.  Mon.  22,  Marshall,  J.,  speak- 
ing for  the  court,  said :  "  It  would  be 
difficiilt,  perhaps  impossible,  to  de- 
fine  the    extent    of    the    legislative 


The  nature  and  scope  of  legislative 
power  in  the  enactment  of  laws  as 
treated  in  an  article  on  "  The  Constitu- 
tionality of  Local  Option  Laws"  in  12 
Am.  L.  Reg.  (N.  S.)  129,  are  too  narrow. 
Conti-ary  to  the  assumptions  there 
made,  it  is  beheved  that  all  valid  acts 


power  of  the  state,  imless  by  saying    of  the  legislatm-e,  whether  national 


that  so  far  as  it  is  not  restricted  by 
the  higher  law  of  the  state  and  fed- 
eral constitutions,  it  can  do  every- 
thing which  can  be  effected  by  means 
of  a  law.  It  is  tlie  gi-eat,  supervising, 
controlling,  creative  and  active  power 
in  the  state,  subject  to  the  funda- 
mental resti-ictions  just  referred  to. 
Whatever  legislative  power  the  whole 
commonwealtli  has,  is  by  the  consti- 
tution vested  in  the  legislative  de- 


or  state,  are  laws.  The  enumerated 
powers  gi-anted  to  congress  are  leg- 
islative in  their  nature;  no  other 
would  vest  in  a  state  legislature  imder 
a  general  grant  of  legislative  power. 
Other  clauses  in  the  constitutions,  re- 
quiring or  regulating  the  action  of 
the  legislatui-e  in  reference  to  specific 
subjects  in  the  internal  sj'stem  or 
pohty  of  the  state,  are  not  intended 
to  confer  or  regulate  any  other  than 


partment,   wliich,    representing    the    the  power  of  making  laws  —  saving 
popular  majorities  in  the  several  local    the  special  jurisdiction  in  cases  of 


divisions  of  the  state,  and  under  no 
other  restraint  but  such  as  is  unposed 
by  the  fundamental  law,  by  its  own 
wisdom  and  its  own  responsibiUties, 
may  regulate  the  conduct  and  com- 
mand the  I'esources  of  all,  for  the 


impeachment,  and  such  as  relate 
to  the  autonomy  of  the  separate 
branches  or  are  incidental  to  the  ex- 
ercise of  its  legislative  f  imction.  Hope 
V.  Deaderick,  8  Humph.  1 ;  Lusher  v. 
Scitss,  4  W.  Va.  11 ;  Myers  v.  Man- 


safety,  convenience  and  happiness  of  hattan  Bank,  20  Ohio,  295 ;  Anderson 

all,  to  be  promoted  in  such  manner  v.  Dunn,  6  Wheat.  204-235 ;  Kilbourn 

as  its  own  discretion  may  determine,  v.  Thompson,  103  U.  S.  168 ;  Von  Hoist, 

The  legislative  department  performs  Const.  L.  §  28.    The  taxmg  power  is 

and  tinislies  its  ofiice  by  the  mere  legislative.     Marr  v.  Enloe,  1  Yerg. 

enactment  of  a  law."  452 ;  Lipscomb  v.  Dean,  1  Lea,  546. 


LEGISLATIVE    POWER,  ETC.  V 

§  9.  Rules  of  action. —  Courts  judicially  formulate  rules  of 
action,  but  only  by  a})})lying  to  a  particular  party  an  existing 
law.  The. court  ascertains  by  trial  that  the  party  is  within 
a  rule  which  is  hiw,  and  the  facts  necessary  to  its  special  oper- 
ation upon  him.  What  that  law  enjoins  in  general  the  court 
adjudicates  and  administers  in  the  particular  case.  Thus,  in 
a  statute  before  me  is  this  provision :  "  Every  person  guilty 
of  fighting  any  duel,  although  no  death  or  wound  ensues,  is  pun- 
ishable by  imprisonment  in  the  penitentiary  not  exceeding  one 
year."  This  is  a  statute  —  a  law.  Mr.  A.  is  accused  of  the 
offense  and  brought  before  a  court  of  competent  jurisdiction, 
by  proper  form  of  accusation  and  by  proper  arrest,  and  not 
pleading  guilty  a  trial  takes  place.  The  court  ascertains  by 
the  verdict  of  a  jury  that  A.  is  guilty  of  the  acts  denounced 
in  the  statute.  The  sentence  based  on  that  verdict  is  that 
"  you,  Mr.  A.,  be  imprisoned  in  the  penitentiary  one  year." 
The  statute  was  general  that  every  person  so  guilty  should  be 
so  imprisoned.  That  was  making  a  laAV  —  prescribing  a  rule 
of  conduct.  The  court  having  judicially  ascertained  that  A.  had 
done  these  acts  applied  the  law  to  him  —  repeats  the  statutory 
rule  of  action  on  A.  Enacting  the  rule  is  legislative ;  trying 
A.  and  applying  the  rule  to  him,  repeating  and  formulating  it 
for  accomplishing  the  imprisonment  provided  for  in  the  rule, 
is  judicial. 

§  10.  Legislative  rules  of  action  —  Essential  limitations. — 
Even  rules  of  action  are  not  valid  laws,  if,  Avhen  enacted  by 
the  legislature,  they  are  judicial  in  then'  nature  or  trench  on 
the  jurisdiction  and  functions  of  the  judiciary.  The  legisla- 
ture may  prescribe  rules  of  decision  which  will  govern  future 
cases ;  these  rules  will  have  the  force  of  law ;  so  general  rules 
of  practice,  regulating  remedies  and  so  operating  as  not  to 
take  away  or  impair  existing  rights,  may  be  made  applicable 
to  pending  as  well  as  subsequent  actions.^   But  it  has  no  power 

iRiggs    V.    Martin,    5    Ark.    506;  18  lud.  303;  Evans  v.  Montgomery, 

Smith  V.  Judge,  17  CaL  558 ;  United  4  AVatts  &  S.  218 ;  Oriental  Bauk  v. 

States  V.  Samperyac,  1  Hempst  118;  Freeze.  18  Me.  109;  Read  v.  Frauk- 

Cutts  V.   Hardee,  88  Ga.  350;  Rath-  fort  Bank,  2'i  id.  318;  kVoods  v.  Buio, 

bone  V.  Bradford,  1  Ala.  312 ;  Coosa  5  How.   (Miss.)  285 ;    United  States 

R  S.  B.  V.  Barclay,  30  id.  120 ;  Hope  Bank  v.  Longworth,  1  McLean,  35 ; 

V.  Johnson,  2  Yerg.   123 ;  Lockett  v.  Taggart  v.  McGiun,  U  Pa.  St  155 ; 

Usiy,  28  Ga,  345 ;  lialston  v.  Lothain,  Van  Norman  v.  Judge,  45  Mich.  204. 


10 


LEGISLATIVE    POWER,  ETC 


to  adiniiiister  judicial  relief,—  it  cannot  decide  cases,  nor  direct 
liow  existing  cases  or  controversies  shall  be  decided  by  the 
courts ;  it  cannot  interfere  by  subsequent  acts  with  final  judg- 
ments of  the  courts.  It  cannot  modify  such  judgments,^  nor 
grant  or  order  new  trials.^  No  declaratory  act,  that  is,  one 
professing  to  enact  what  the  law  now  is  or  was  at  any  past 
time,  can  affect  any  existing  rights  or  controversies.^ 

§  11.  The  merits  of  every  legal  controversy  depend  on  the 
rights  of  the  parties  as  determined  by  the  law  as  it  was  when 
the  rights  in  question  accrued,  or  the  wrong  complained  of 
was  done.^    A  statutory  right,  howevei',  is  inchoate  until  re- 


1  Denny  v.  Mattoon,  2  Allen,  361. 

-  Atkinson  v.  Dunlap,  50  Me.  Ill ; 
Griffin  v.  Cunningham,  20  Gratt.  31 ; 
Reid,  Adm'r,  v.  Stridor,  7  id.  76 ;  Cal- 
hoim  V.  McLeudon,  42  Ga^  405; 
Reiser  v.  Wm.  Tell,  etc.  Assoc.  39  Pa. 
St.  147 ;  Carleton  v.  Goodwin,  41  Ala, 
loo;  O'Conner  v.  Warner,  4  Watts 
&  S.  227 ;  Arnold  v.  KeUey,  5  W.  Va. 
446;  De  CliasteUux  v.  Faircliild,  15 
Pa.  St.  18 ;  Greenough  v.  Greenough, 
11  id.  489 ;  McCabe  v.  Emerson,  18  id. 
Ill ;  United  States  v.  Klein,  13  WaU. 
128;  United  States  v.  Samperyac,  1 
Herapst  118 ;  Bagg's  Appeal,  43  Pa. 
St.  512 ;  Taylor  v.  Place,  4  R.  I.  324 ; 
Erie,  etc.  R.  R.  Co.  v.  Casey,  1  Grant's 
Cas.  274;  Miller  v.  Fiery,  8  Gill,  147; 
Crane  v.  McGinnis,  1  GiU  &  J.  463 ; 
Trask  v.  Green,  9  Mich.  366 ;  Bates  v. 
Kimball,  2  D.  Cliip.  77 ;  Burch  v.  New- 
bury, 10  N.  Y.  374 ;  Commonwealth 
V.  Johnson,  42  Pa.  St.  448 ;  Inhabit- 
ants of  Durham  v.  Inliab.  of  L.  4 
GreenL  140;  Ex  parte  Darling,  16 
Nev.  98 ;  Davis  v.  Village  of  Menasha, 
21  Wis.  491 ;  Kendall  v.  Dodge,  3  Vt. 
360. 

^Tilford  V.  Ramsey,  43  Mo.  410; 
People  V.  Supervisors,  16  N.  Y.  425, 
432 ;  Ogden  v.  Blackledge,  2  Crancli, 
272;  Gordon  v.  lughram,  1  Grant's 
Cas.  152;  Dash  v.  Van  Kleeck,  7 
John.  477;  Mongeon  v.  People,  55 
N.  Y.  613 ;  McLeod  v.  Burroughs,  9 


Ga.  213 ;  Lambertson  v.  Hagan,  2  Pa. 
St.  25 ;  Peyton  v.  Smith,  4  McCord, 
476 ;  Hall  v.  Goodw-yn,  id.  442 ;  Grigs- 
by  V.  Peak,  57  Tex.  142;  Van  Nor- 
man V.  Judge,  45  Mich.  204.  It  was 
held  (Alvord  v.  Little,  16  Fla.  158) 
that  an  act  extending  the  time  to  ap- 
peal, passed  after  the  expii-ation  of 
the  tune  allowed  therefor  by  existing 
law,  did  not  affect  vested  rights,  be- 
cause it  apphed  only  to  the  remedy. 
So  does  a  statute  of  limitations ;  but  an 
act  would  not  be  sustained  which 
revived  a  right  of  action  after  it  was 
barred  by  the  existing  law.  Girdner 
V.  Stephens,  1  Heisk.  280 ;  Adamson  v. 
Davis,  47  Mo.  268 ;  Thompson  v.  Read, 
41  Iowa,  48 ;  Pitman  v.  Bmnp,  5  Ore- 
gon, 17 ;  Wood  on  Lim.  §  11,  The  leg- 
islature is  not  only  incapable  of  per- 
forming judicial  functions,  but  it  can 
confer  no  other  than  judicial  powers 
on  the  courts.  The  Auditor  v.  Atclii- 
son,  etc.  R,  R.  Co.  6  Kans.  500 ;  S.  C.  7 
Am.  R.  575 ;  Burgoyne  v.  Supervis- 
ors, 5  Cal.  9 ;  Dickey  v.  Hurlburt,  id. 
343;  Hayburn's  Case,  2  DalL  409; 
Railway  Co.  v.  Board  Pub.  Works,  28 
W.  Va.  264.  See  United  States  v.  Fer- 
reira,  13  How.  40. 

■1  Pacific,  etc.  Co.  v.  Joliffe,  2  Wall. 
450;  Vanderkar  v.  Raih'oad  Co.  13 
Barb.  390;  People  v.  Supervisors,  3 
id.  332. 


LEGISLATIVE    POWER,  ETC.  1 1 

duced  to  possession  or  fixed  and  perfected  by  a  judgment.' 
It  is  judicial  to  determine  what  the  hiw  was  or  is;  and  the 
kind  and  measure  of  redress  due  to  parties,  founded  upon  the 
facts  of  a  case,  by  apphcation  of  that  law.  New  laws  cannot 
be  passed  to  affect  existing  controversies,  or  to  interfere  with 
the  administration  of  justice  according  to  those  principles. 

To  pass  new  rules  for  the  regulation  of  new  controversies  is  in 
its  nature  a  legislative  act ;  but  if  these  rules  interfere  with  the 
]jast  or  the  present,  and  do  not  look  wholly  to  the  future,  they 
violate  the  definition  of  a  law  as  a  rule  of  civil  conduct ;  because 
no  rule  of  civil  conduct  can  with  consistency  operate  upon  what 
occurred  before  the  rule  itself  was  promulgated.-  "Whether  in 
their  inquiries  the  legislature  and  the  courts  proceed  upon  the 
same  or  diilerent  evidence  does  not  change  the  nature  of  legis- 
lative acts.  Kor  can  their  inquiries,  deliberations,  orders  and 
decrees  be  both  judicial  and  legislative,  because  a  marked  dif- 
ference exists  between  the  functions  of  judicial  and  legislative 
tribunals.  The  former  decide  upon  the  legahty  of  claims  and 
conduct;  the  latter  make  rules  upon  which  in  connection 
with  the  constitution  these  decisions  should  be  founded.^  Leg- 
islative power  prescribes  rules  of  conduct  for  the  future  gov- 
ermuent  of  the  citizen  or  subject ;  whde  judicial  power  pun- 
ishes or  redresses  wrongs  growing  out  of  a  violation  of  rules 
previously  established.  The  distinction  lies,  in  short,  between 
a  sentence  and  a  rule.^ 

§  12.  Statutes  have  no  extraterritorial  eifect. —  Statutes 
derive  their  force  from  the  authority  of  the  legislature  which 
enacts  them ;  and  hence,  as  a  necessary  consequence,  their  au- 
tliorit}^  as  statutes  will  be  limited  to  the  territory  or  country 
to  which  the  enacting  power  is  limited.     It  is  only  within 

iNorris  v.  Crocker,  13  How.  429;  volves  on  the  courts,  not  the  legis- 

The  Irresistible,  7  Wheat.  551 ;  Cal-  lature,  to  determine  the  meaui\ig  of 

houn    V.    McLendon,    42    Ga.    407;  "head  of  a  family,"  as  used  in  the 

United  States  •  v.  Mann,  1  Gallison,  constitutional  provision  for  a  home- 

177;  United  States  v.  Passmore,  4  stead. 

Ball.  372 ;  Town  of  Guilford  v.  Su-  -'  :\Ierrill  v.  Shorbm-ne,  1  N.  H.  204. 

pervisors,  13  N.  Y.  143;  H;ui:i)tou  v.  iJd.;  State  v.  Dews,  R  M.  Charlt 

Commonwealth,  19  Pa.  St.  329  ;  Sto-  400 ;  Bedford  v.  ShiUing,  4  S.  &  R  411 ; 

ever  v.  Immell,  1  Watt  ,  258 ;  Williams  Ogden  v.  Blackledge,  2  Crimch,  273 ; 

V.  Commissioners,  35  Me.  345 ;  Tivey  McLeod  v.  Biu-rouglis,  9  Ga.  213. 

V.  People,  8    Mich.   128;    Common-  ■«  Ex    parte   Slu-ader,  33  CaL  283; 

wealth  V.  Duane,  1  Binn.  601.    It  de-  Cooley's  Con.  L.  110,  111. 


12  LEGISLATIVE    POWEE,  ETC. 

these  boundaries  that  the  legislature  is  law  maker,  that  its 
laws  govern  people,  that  they  operate  of  their  own  vigor  upon 
anv  subject.  No  other  laws  have  effect  there  as  statutes.  Stat- 
utes of  other  states,  or  national  jurisdictions,  are  foreign  laws, 
of  which  the  courts  do  not  take  judicial  notice.  They  may  be 
proved  and  taken  into  consideration  in  proper  cases,  subject 
to  the  provisions  of  domestic  statutes  and  of  the  constitution ; 
but  they  are  so  considered  only  by  the  principles  of  the  com- 
mon and  international  law,  originating  in  the  comity  which 
exists  between  nations  and  by  force  of  the  federal  constitution 
between  the  states  of  the  Union.* 

The  observance  or  recognition  of  foreign  laws  rests  in  comity 
and  convenience,  and  in  the  aim  of  the  law  to  adapt  its  reme- 
dies to  the  great  ends  of  justice.^  But  there  is  a  limit  to  this 
principle  of  comity ;  and  cases  may  and  do  arise  where  the  ob- 
servance of  foreign  laws  would  neither  be  convenient  nor  an- 
swer the  purposes  of  justice.  Foreign  laws  are  not  regarded 
where  they  conflict  with  our  own  regulations,  our  local  policy, 
or  do  violence  to  our  views  of  religion  or  public  morals.^ 

Whatever  force  and  obligation  the  laws  of  one  country  have 
in  another  depends  upon  the  laws  and  municipal  regulations 
of  the  latter ;  that  is  to  say,  upon  its  own  proper  jurisprudence 
and  polity,  and  upon  its  own  express  or  tacit  consent.    When 

1  Shaw  V.  Brown,  35  Miss.  346,  316 ;  ingly  receiving  of  stolen   property, 

Minor  v.  Cardwell,  37  Mo.  353 ;  Clarke  though    perpeti-ated    in    a    foreign 

V.   Pratt,  20  Ala.  470 ;   Harrison  v.  coimtry  or  state,  if  the  property  was 

Han-ison,  icL  629 ;  CockreU  v.  Gurley,  brought  into  tlie  state,  provided  that 

26  id.  405 ;  Woodward  v.  DonaUy,  27  by  the  law  of  the  foreign  coimtry  or 

id.  196 ;  Mobile  &  O.  R,  Co.  v.  Whit-  state  the  inculpatory  act  woidd  have 

uey,   39  id.   471 ;  Bank  of  Augusta  been  the  offense  charged  in  the  in- 

V.  Earle,  13  Pet  519 ;  Carey  v.  Cin-  dictment    It  was  held  in  Cummins 

ciunati,  etc.  R.  R.  Co.  5  Iowa,  357 ;  v.  State,  12  Tex.  App.  121,  that  ui  such 

Debevoise  v.  N.  Y.  etc.  R.  R,  Co.  98  a  ciise  the  law  of  the  foreign  country 

N.  Y.  377 ;  S.  C.  50  Am.  R.  683 ;  Land  or  state  is  an  element  of  the  offense 

Grant  Railway  v.  Commissioners,  6  and  an  issuable  fact  to  be  alleged  ua 

Kan.  252 ;   Pickering  v.  Fisk,  6    Vt.  the  indictment,  but  the  indictment 

107 ;   Andrews    v.   Herriott,  4  Cow.  need  not  aver  that  the  accused  was 

508,  and  note ;  Saul  v.  His  Creditors,  punishable  or  amenable  to  the  laws 

5    Mart.  (N.  S.)  569 ;  3  Am.  &  Eng.  of  the  foreign  countiy  or  state. 

Cyclop.  L.  502.  '  Pickermg  v.  Fisk,  6  Vi  107 ;  Story, 

Articles  798  and  799  of  the  penal  Conf.  L.  §  35. 

code  of  Texas  provide  for  the  pimish-  ^  xd. 
ment  of  robbery,  theft,  aad  the  know- 


LEGISLATIVE    POWER,  ETC.  13 

a  statute  or  tlio  unwritten  or  common  law  of  the  country  for- 
bids the  recognition  of  the  foreign  law,  the  latter  is  of  no 
force  whatever.  AVhen  both  are  silent,  then  the  question 
arises,  which  of  the  conflicting  laws  is  to  have  effect.  Gen- 
erally, force  and  effect  will  be  given  by  any  state  to  foreign 
laws  in  cases  where  from  the  transactions  of  the  parties  they 
are  applicable,  unless  they  affect  injuriously  her  own  citizens, 
violate  her  express  enactments,  or  are  contra  honos  mores} 

The  courts  of  one  state  will  not  enforce  the  penal,*  nor  the 
police,  revenue  or  political  laws  of  another.'  Crimes  are  in 
their  nature  local,  and  the  jurisdiction  of  them  is  local*  They 
are  cognizable  and  punishable  exclusively  in  the  country  where 
they  are  committed.* 

§  13.  As  every  nation  possesses  an  exclusive  sovereignty  and 
jurisdiction  within  its  own  territory,  its  laws  affect  and  bind 
directly  all  property,  whether  real  or  personal,  within  that 
territory ;  and  all  persons  w^ho  are  resident  within  it,  whether 
natural-born  subjects  or  aliens,  and  also  all  contracts  made 
and  acts  done  within  it.  A  state  may,  therefore,  regulate 
the  manner  and  circumstances  under  which  such  property,  in 
possession  or  in  action,  within  it  shall  be  held,  transmitted,  be- 
queathed, transferred  or  sued  for ;  the  condition,  capacity,  and 
state  of  all  persons  within  it;  the  validity  of  contracts  and 
other  acts  done  within  it;  the  resulting  rights  and  duties 
growing  out  of  these  contracts  and  acts ;  and  the  remedies  and 
modes  of  administering  justice  in  all  cases  calling  for  the  in- 

1  Lawi-ence's  Wlieaton  (2d  ed.),  102 ;  S.)  301 ;  Holman  v.  Johnson,  1  Cowp. 
Bouv.  L.  Die.  tit  Conflict  of  Laws ;  3 13 ;  James  v.  Cathenvood,  3  D.  &  R 
Story,  Conf.  L.  §§  23,  29;  Minor  v.  190  (16  Eng.  C.  L.  165);  RandaU  v. 
Cardwell,  37  ]\Io.  354 ;  3  Am.  &  Eng.  Van  Rensselaer,  1  Jolin.  95 ;  Stevens 
Cyclop.  L.  502-503 ;  Caldwell  v.  Van-  v.  Brown,  20  W.  Va,  450 ;  Woods  v. 
vlisseugen,  9  Hare,  425 ;  Fenton  v.  Wicks,  7  Lea,  40.  See  South  Carolina 
Livingstone,  3  Macq.  H.  L.  Cas.  497 ;  R.  R  Co.  v.  Nix,  68  Ga,  572 ;  Whart 
Gardner  v.  Lewis,  7  Gill,  377 ;  Beard  Am.  L.  §  253. 

V.  Basye,  7  B.  Mon.  144.  3  James  v.  Cathenvood,  3  D.  &  R. 

2  The  Antelope,  10  A\Tieat  60,  123 ;  190 ;  Blanche  v.  Fletcher,  1  Doug. 
Scoville  V.  Confield,  14  John.  338;  251;  Bristol  v.  Sequeville,  5  Exch. 
Commonwealth  v.  Green,  17  Mass.  275 ;  Quarrier  v.  Colston,  1  PliiL  147. 
515;  Folliott  v.  Ogden,  1  H.  Black.  See  Heniy  v.  Sargeant,  13  N.  H.  321. 
135;  Ogden  V.  Folliott,  3  T.  R  733;  *  Rafael' v.  Verelst,  2  W.  Black. 
Wolff  V.  Oxholm,  6  M.  &  S.  99 ;  King  1058. 

of  Two  SiciUes  v.  Wilcox,  1  Sim.  (N.        » Story's  Conf.  L.  g  630. 


14:  LEGISLATIVE    POWER,  ETC. 

terposition  of  its  tribunals  to  protect  and  vindicate  and  secure 
the  wholesome  agency  of  its  own  laws  within  its  own  domains.^ 

Transitory  rights  accruing  under  any  municipal  laws  may  be 
enforced  in  another  jurisdiction,  subject  to  the  principles  just 
stated,  that  they  be  not  repugnant  to  its  policy  or  prejudicial 
to  its  interests ;  and  personal  states  and  relations,  originating 
under  and  valid  by  the  law  of  the  domicile  or  place  of  contract, 
will  be  aniversally  recognized  as  valid,  subject  to  the  same  con- 
dition.- A  legal  title,  duly  acquired  in  any  one  count  r}^,  is  a 
good  title  over  all  the  world. ^ 

§  14.  Where  either  by  common  law  or  statute  a  right  of 
action  has  become  fixed  and  a  legal  liabihty  incurred,  if  tran- 
sitory, it  may  be  enforced  in  the  courts  of  any  state  which 
can  obtain  jurisdiction  of  the  defendant,  provided  it  is  not 
against  the  public  policy  of  the  laws  of  the  state  w^here  it  is 
souffht  to  be  enforced.  The  statute  has  no  extraterritorial 
force,  but  rights  under  it  will  ahvays  in  comity  be  enforced, 
if  not  against  the  policy  of  the  laws  of  the  forum.  In  such 
cases  the  law  of  the  place  where  the  right  was  acquired  or 
the  liability  was  incurred  will  govern  as  to  the  right  of  ac- 
tion,* while  all  that  pertains  merely  to  the  remedy  will  be  con- 
trolled by  the  law  of  the  state  where  the  action  is  brought.* 

1  Story,  Conf.  L.  §§  18,  29,  30 ;  Chi-  *  Herrick  v.  Minneapolis,  etc.  R  R 
cago,  etc.  R.  R  Co.  v.  Doyle,  60  Miss.  Co.  31  Minn.  11 ;  S.  C.  47  Am.  R. 
977 ;  Debovoise  v.  N.  Y.  etc.  R.  R.  Co.  771 ;  Knight  v.  West  Jersey  R  R 
98  N.  Y.  377 ;  PhiUips  v.  Hunter,  2  Co.  108  Pa.  St.  250 ;  S.  C.  56  Am.  R 
H.  Black.  402 ;  Sill  v.  Worswick,  1  200 ;  Dennick  v.  R.  R  Co.  103  U.  S, 
H.  Black.  672;  Campbell  v.  Hall,  11;  Leonard  v.  Columbia  St  Nav. 
1  Cowp.  208 ;  Liverm.  Dis.  26-30 ;  Co.  84  N.  Y.  48 ;  S.  C.  38  Am.  R  491 
Hyde  v.  Wabash,  etc.  R  R  Co.  61  Central  R  R  Co.  v.  Swint,  73  Ga.  651 ; 
Iowa,  441 ;  S.  C.  47  Am.  R  820 ;  Law-  Morris  v.  Chicago,  etc.  R  R  Co.  65 
rence's  Wheat  160, 161 ;  Davis  v.  Jac-  Iowa,  727 ;  S.  C.  54  Am.  R  39 ;  Shedd 
quin,  5  Harr.  &  J.  100.  v.  Moran,  10  111.  App.  618 ;  Ramsey  t. 

2  Nashville,  etc.  R  R.  Co.  v.  Foster,  Glenn,  33  Kan.  271 ;  Boyce  v.  Wabash 
10  Lea,  351 ;  State  Bank  Receiver  v.  R'y  Co.  63  Iowa,  70 ;  S.  C.  50  Am.  R. 
Plainfield  Bank,  84  N.  J.  Eq.  450;  730;  Keenan  v.  Stunson,  32  Minn. 
Whart  Am.  L.  ch.  V;  Bank  of  Au-  377;  Bishop  v.  Globe  Co.  135  Mass. 
gusta  V.  Earle,  13  Pet  519,  589 ;  Sher-  132 ;  Taylor  v.  Penn.  Co.  78  Ky.  348 : 
wood  V.  Judd,  3  Bradf.  419 ;  Sanford  S.  C.  39  Am.  R  244.  See  WiUis  v.  R. 
V.  Thompson,  18  Ga.  554.  R  Co.  61  Tex.  432 ;  Vawi;er  v.  Pac. 

■i  Simpson  v.  Fogo,  1  H.  &  M.  195 ;     R'y  Co.  84  Mo.  679 ;  S.  C.  54  Am.  R. 
Crispin  v.   Doglioni,   3  S.  &  T.   96;     105. 
Beards  Ex'r  v.  Basye,  7  B.  Mon.  144.        ^  Itl ;  Burlington,  etc.  R  R.  Co.  v. 


LEGISLATIVE    POWER,  ETC.  15 

§  15.  Extraterritorial  operation  of  laws  in  case  of  coloni- 
zation of  a  new  conntry. — It  was  declared  by  the  lords  of  the 
priv}''  council  in  England,  over  a  hundred  and  fifty  years  ago, 
upon  ap])eal  from  the  foreign  plantations,  that  if  there  be  a  new 
uninhabited  country  found  out  by  English  subjects,  as  the 
law  is  the  birthright  of  every  subject,  so  Avherever  they  go 
they  carry  the  laws  with  them ;  therefore,  such  new  found 
country  is  governed  by  the  laws  of  England,'  English  statutes 
enacted  prior  to  the  settlement  of  the  colonies  in  America 
■were  brought  thither  with  the  common  law;  or  rather  the 
common  law,  and  the  statutes  amendatory  of  it,  by  the  colo- 
nists from  England,  as  a  birthright ;  not  to  operate  of  their  own 
vigor  in  the  colonies,  as  statutes,  but  as  part  of  the  unwritten 
law.  The  colonists  brought  the  laws  of  the  mother  country 
as  they  brought  the  mother  tongue ;  not  all  the  laws,  but  such 
as  were  adapted  to  their  needs  in  the  new  country  under  the 
novel  conditions  and  circumstances  which  there  existed.- 

§  16.  The  existence  of  this  law  in  the  colonies  was  recog- 
nized and  sanctioned  by  the  royal  charters,  subject  to  modifica- 
tion by  colonial  usage  and  legislation.  Our  colonial  ancestors 
could  live  under  the  old  laws,  or  make  new  ones.  "When  they 
legislated,  their  own  laws  governed  them ;  when  they  did  not, 
the  laws  they  brought  with  them  were  their  rules  of  conduct.* 

Thompson,  31  Kan.  180;  S.  C.  47  Am.  Adj. -Gen.  v.  Ranee  Sumomoye  Dos- 
R  497 ;  Mooney  v.  Union  Pacific  R.  see,  9  Moore  (Ind.  App.),  387 ;  Com- 
R  Co.  60  Iowa,  346.  "  A  contract,  so  monwealth  v.  Leach,  1  Mass.  60 ;  Corn- 
far  as  concerns  its  formal  making,  is  monwealth  v.  Kuowlton,  2  id.  53-1 ; 
to  be  determined  by  the  law  of  the  Boehm  v.  Engle,  1  Dall.  15 ;  Bogardus 
place  wliere  it  is  solemnized,  unless  v.  Trinity  Church,  4  Paige,  198.  See 
the  lev  situs  of  property  disposed  of  Chalmers'  Colonial  Op.  206, 232. 
otherwise  requu-es ;  so  far  as  concerns  2  State  v.  Rollins,  8  N.  H.  550,  501 ; 
its  interpre»:ation,  by  tlie  law  of  the  Commonwealth  v.  Knowlton,  2  Mass. 
place  where  its  terms  are  settled,  im-  534 ;  Patterson  v.  "Wmn.  5  Pet  233 ; 
less  the  parties  had  the  usages  of  an-  Clawson  v.  Primrose,  4  Del  Cli.  643 ; 
otlier  place  in  view ;  so  far  as  con-  OTerrall  v.  Simplot,  4  Iowa,  400 ; 
earns  the  remedy,  by  the  law  of  the  Vidal  v.  Girard's  Heu's,  2  How.  128; 
place  of  suit ;  and  so  far  as  concei-ns  Webster  v.  Morris,  66  "Wis.  366 ; 
its  performance,  by  the  law  of  the  Dodge  v.  Williams,  46  id.  92 ;  Nelson 
place  of  performance."  Whart.  Conf.  v.  McCrary.  60  Ala.  301. 
L.  (2d  ed.)  §  401.  s  Sackett  v.  Sackett,  8  Pick.  309 ;  1 
'  ^lem.  2  P.  Wms.  To ;  1  Black.  Com.  Kent's  Com.  473 ;  Commonwealth  v. 
107 ;  Blaukard  v.  Galdy,  2  Salk.  411 ;  Knowlton,  smva, 
Dutton  V.  Howell,  Show.  P.  C.  32; 


16 


LEGISLATIVE    POWER,  ETC. 


The  English  statutes  thus  imported,  though  the  written  law 
m  England,  and  there  in  force  as  the  expression  of  the  sov- 
ereign will,  did  not  cling  to  the  emigrant  and  attend  him  to 
the  colonies  against  his  wiU  to  preserve  his  subjection  to  the 
crown ;  but  he  brought  it  as  a  boon  for  his  protection.^  In 
the  colonies  these  statutes  were  interw^oven  with  the  common 
law.  Their  authority  was  the  same  as  that  which  gave  force 
and  sanction  to  the  common  law ;  the  force  of  each  depended 
on  the  same  consideration  —  the  presence  of  this  spirit  in  the 
emigrant's  mind  and  their  adaptation  to  his  condition  and  cir- 
cumstances in  the  colonies.  In  1774  the  congress  declared  the 
rio-ht  of  the  colonies  to  the  common  law  and  statutes  of  the 

D 

mother  country.^ 

§  17.  English  statutes  passed  after  the  establishment  of 
the  colonies. —  The  colonies  were  subject  to  the  authority  of 
parliament ;  they  were  a  part  of  the  British  domain.^  It  could, 

1  The  declaration  of  Dr.  Franklin    able  as  might  be  to  the  laws  of  Eng- 


quoted  by  Mr.  Wharton  (Wharton's 
Am.  L.  §  22,  note)  truly  states  the 
force  of  EngUsh  laws  brought  to  this 
country  by  the  colonists.  He  said: 
"  The  settlers  of  colonies  in  America 
did  not  carry  with  them  the  laws  of 
the  land  as  being  bound  by  them 
wherever  they  should  settle.  They 
left  the  realm  to  avoid  the  inconven- 
iences and  hardships  they  were  under 
where  some  of  these  laws  were  in 
force,  particularly  ecclesiastical  laws, 
those  for  the  payment  of  tithes,  and 
others.  Had  it  been  tmderstood  that 
they  were  to  carry  those  laws  with 
them,  they  had  better  have  stayed  at 
home  among  their  friends  unexposed 
to  the  risks  and  toils  of  a  new  settle- 
ment. They  carried  with  them  a 
right  to  such  part  of  the  laws  of  the 
land  as  they  should  judge  advanta- 
geous or  useful  to  them ;  a  right  to 
be  free  from  those  that  they  thought 
hurtful,  and  a  right  to  make  such 
otliers  as  they  should  think  neces- 
sary, not  infringing  the  general 
rights  of  Englishmen ;  and  such  new 
laws  as  they  were  to  form  as  agree- 


land."  See  speech  of  Burke  on  mov- 
ing resolutions  of  conciliation,  Mai'ch 
22,  1775. 

2  Journal  of  Cong.  Oct.  14,  1774 

3  In  a  late  work,  entitled  "  ParUa- 
mentary  Grovemment  in  the  British 
Colonies,"  by  Alpheus  Todd,  p.  128,  it 
is  said:  "Subject,  however,  to  the 
constitutional  oversight  and  discre- 
tion of  the  crown,  by  which  all  colo- 
nial legislation  is  hable  to  be  con- 
ti'olled  or  annulled,  if  exercised  un- 
lawfully or  to  the  prejudice  of  other 
parts  of  the  empire,  complete  powers 
of  legislation  appertain  to  aJl  duly 
constituted  colonial  governments. 
Every  local  legislature,  whether  cre- 
ated by  charter  from  the  crown  or 
by  imperial  statute,  is  clothed  with 
supreme  authority,  witliin  the  limits 
of  the  colony,  to  provide  for  the 
peace,  order  and  good  govei-nment  of 
the  inhabitants  thereof.  (See  Baron 
Burke's  judgment  in  Kielley  v.  Car- 
son, 4  IMoore's  Privy  Council  Rep.  85.) 
This  supreme  legislative  authority  is 
subject,  of  course,  to  the  paramovmt 
supremacy  of  the    imperial   parlia- 


LEGISLATIVE    POWER,  ETC. 


17 


and  to  some  extent  it  did,  legislate  directly  for  their  govern- 
ment. But  its  enactments  did  not  extei.  I  to  the  colonies  un 
less  the  intention  to  so  extend  them  was  manifested  in  the 
statutes.*  Nor  did  such  statutes,  in  which  no  such  intention 
was  expressed,  become  part  of  the  unAvritten  law  of  the  colo- 
nies.* 

In  some  instances,  statutes  of  England  passed  after  the  emi- 
gration, and  not  in  terms  made  apphcable  to  the  colonies, 
were  adopted  by  the  colonial  courts;  thus  by  long  practice 
they  acquired  the  authority  of  law.'  By  statutory  and  con- 
stitutional pro^asion,  the  common  law  and  English  statutes, 
prior  to  specified  dates,  have  been  very  generally  adopted,  or 
assumed  by  the  courts  to  be  in  force  so  far  as  consistent  with 
our  condition  and  sj'stem  of  government,  not  only  by  states 
formed  from  the  colonies,  but  in  the  newer  states.*  The  legis- 
lative and  juridical  history  of  the  colonies  does  not  confirm 
the  theory  that  English  laws  were  imposed  on  the  colonies  by 
authority  of  parliament,  or  that  their  adoption  is  traceable 
alone  and  everywhere  to  the  nationality  of  the  colonists.  They 
unconsciously,  by  usage  and  custom,  adopted  laws  adapted  to 
their  situation  and  needs,  according  to  such  enlightenment 
as  they  had,  under  the  conjoint  influence  of  dissenting  re- 
ligion and  national  bias.  They  legislated  to  the  same  end, 
and  under  the  same  influence ;  independently  of  the  crowTi, 
despite  the  restrictions  in  their  constitutions,  and  the  practice 
or  requirement  in  some  cases  to  legislate  in  the  name  of  the 
king  and  the  ostensible  recognition  of  his  veto  power.^ 

ment  over  all  minor  and  subordinate  liberate  and  determine  absolutely  in 
legislatures  within  the  empire.  The  regard  to  aU  matters  of  local  con- 
functions  of  control  exercisable  by  cern." 

the  imperial  legislatm-e  are  practi-  '  McKineron  v.  Bliss,  31  Barb.  180. 
cally  restrained,  however,  by  the  op-  See  Brice  v.  State,  2  Overt  254 ; 
eration  of  certain  constitutionjxl  prin-  Egnew  v.  Coclu-ane,  2  Head,  329. 
ciples.  ...  It  may  suffice  to  2  Matthews  v.  Ansley,  31  Ala.  20 ; 
observe  that  tlie  right  of  local  self-  Carter  v.  Balfour,  19  Ala.  829 ;  Sack- 
government  conceded  to  all  British  ett  v.  Sackett,  8  Pick.  309 ;  Common- 
colonies  wherein  representative  insti-  wealth  v.  Knowlton,  2  Mass.  534. 
tutions  have  been  inti'oduced  confers  *  Commonwealtli  v.  Knowlton, 
upon  the  local  legislature,  with  co-  suprcu 

operation  and  consent  of  the  crown,  *  Id. ;  ^Morris  v.  Vanderen,  1  DaLL 

as  an  integral  part  of  such  institution,  64,  67 ;  Respublica  v.  Mesca,  id.  73. 

ample  and  um-eserved  powers  to  de-  *  Edmund  Burke,  in  his  speech  in 


18 


LEGISLATIVE    POWEK,  ETC. 


The  original  British  colonies  had  been  practically  self-govern- 
ing, and  the  result  of  the  revolution  was  to  confirm  their 
right  of  self  government.  The  people  of  the  several  col- 
onies, in  provisional  union,  won  in  that  struggle  the  sover- 
eignty of  themselves.  The  republican  system  which  replaced 
the  colonial  constitutions  abrogated  only  the  prior  laws  which 
were  inconsistent  with  the  genius  and  form  of  the  new  govern- 
ment. 

§  18.  The  fi.rst  settlements  were  not  all  made  by  English 
people,  nor  were  all  the  Enghsh  settlements  made  by  persons 
of  the  same  class  or  from  the  same  motives.  Von  Hoist  has 
truly  remarked,  that  "  the  thirteen  colonies  had  been  founded 
at  very  different  times  and  under  very  different  circum- 
stances. Their  whole  course  of  development,  their  pohtical 
institutions,  their  religious  views  and  social  relations,  were  so 
divergent,  the  one  from  the  other,  that  it  was  easy  to  find 
more  points  of  difference  than  of  similarity  and  comparison. 

moving  resolutions  of  conciliation 
March  22, 1775,  said :  "  When  I  know- 
that  the  colonies  in  general  owe  Uttle 
or  nothing  to  any  care  of  ours,  and 
that  they  are  not  squeezed  into  this 
happy  form  by  the  constraints  of 
watchful  and  siispicious  government, 
but  that,  through  a  wise  and  salutary 
neglect,  a  generous  nature  has  been 
suffered  to  take  her  own  way  to  per- 
fection—  when  I  reflect  upon  these 
effects,  when  I  see  how  profitable 
they  have  been  to  us,  I  feel  the  pride 
of  power  sink,  and  aU  presumption  in 
the  vsdsdom  of  human  contrivances 
melt  and  die  away  within  me, —  my 
\-igor  relents,  —  I  pardon  something 
to  the  spirit  of  Uberty."  Having  ad- 
dressed a  series  of  considerations  to 
show  the  f utiUty  and  inexpedience  of 
employing  force  against  the  revolt- 
ing colonies,  he  said:  "Lastly,  we 
have  no  sort  of  experience  in  favor  of 
force  as  an  instrument  in  the  rule  of 
our  colonies.  Their  growth  and  their 
utihty  has  been  owing  to  methods 
altogether  different.  Our  ancient  in- 
dulgence has  been  said  to  be  pursued 


to  a  fault  It  may  be  so;  but  we 
know,  if  feeling  is  evidence,  that  om* 
fault  was  more  tolerable  than  our 
attempt  to  mend  it,  and  our  sin  more 
salutary  than  our  penitence.  .  .  . 
But  there  is  stUl  beliind  a  third  con- 
sideration, concerning  this  object, 
which  serves  to  determine  my  opinion 
on  the  sort  of  poUcy  wlaich  ought  to 
be  pursued  in  the  management  of 
America,  even  more  than  the  popu- 
lation and  its  commerce ;  I  mean  its 
temper  and  character.  In  this  char- 
acter of  Americans,  a  love  of  freedom 
is  the  predominating  feature  whicli 
marks  and  distinguishes  the  whole; 
and  as  an  ardent  is  always  a  Jealous 
affection,  your  colonies  become  sus- 
picious, restive,  and  mitractable, 
whenever  they  see  the  least  attempt 
to  wrest  from  them  by  force,  or 
shuffle  from  them  by  chicane,  what 
they  think  the  only  advantage  wortli 
Living  for.  Tliis  fierce  sphit  of  liberty 
is  stronger  in  the  English  colonies, 
probably,  than  in  any  other  people  of 
the  earth,  and  tliis  from  a  great 
variety  of  powerful  causes." 


LEGISLATIVE    POWER,  ETC.  19 

Besides,  commercial  intercourse  between  the  distant  colonies, 
in  consequence  of  the  great  extent  of  their  territory,  the 
scantiness  of  the  population,  and  the  poor  means  of  transpor- 
tation at  the  time,  was  so  slight,  that  the  similarity  of  thought 
and  feeling,  which  can  be  the  result  only  of  a  constant  and 
thriving  trade,  was  wanting."^  It  is  not  surprising,  therefore, 
that  the  same  English  statutes  were  not  equally  applicable  to 
the  local  condition  in  aU  the  colonies. 

In  Dana's  Abridgment-  it  is  said,  "there  is  no  e[uestion 
more  difficult  to  be  answered  than  this :  '  What  British  stat- 
utes were  adopted  in  the  British  colonies  ? '  In  the  chartered 
colonies  but  few  w^ere  adopted  and  practiced  upon;  in  the 
proprietary  colonies,  not  many ;  in  the  royal  colonies,  usually 
a  great  many." 

§  19.  Contiiiuaiiceoflaws  after  a  change  of  sovereignty. — 
Laws,  customary  and  statutory,  continue  in  force,  though  they 
originate  under  a  sovereign  whose  power  has  ceased  by  cession 
of  the  country  and  all  pohtical  jurisdiction,  or  by  conquest. 
"  The  usage  of  the  world  is,"  says  Chief  Justice  Marshall,  "  if 
a  nation  be  not  entirely  subdued,  to  consider  the  holding  of 
conquered  territory  as  a  mere  military  occupation,  until  its 
fate  shall  be  determined  at  the  treaty  of  peace.  If  it  be  ceded 
by  the  treaty  the  acquisition  is  confirmed,  and  the  ceded  terri- 
tory becomes  a  part  of  the  nation  to  which  it  is  annexed ;  either 
on  the  terms  stipulated  in  the  treaty  of  cession,  or  on  such  as 
its  new  master  sliaU  impose.  On  such  transfer  of  territory,  it 
has  never  been  held  that  the  relations  of  the  inhabitants  with 
each  other  undergo  any  change.  Their  relations  with  their 
former  sovereign  are  dissolved,  and  new  relations  are  created 
between  them  and  the  government  which  has  acquired  their 
territory.  The  same  act  which  transfers  their  country  trans- 
fers the  allegiance  of  those  who  remain  in  it ;  and  the  law, 
which  may  be  denominated  political,  is  necessarily  changed, 
although  that  which  regulates  the  intercourse  and  general 
conduct  of  individuals  remains  in  force  until  altered  by  the 
newly  created  power  of  the  state."  ^    Among  civihzed  na- 

1  Von  Hoist,  Const  Hist  U.  S.  vol  I,  Pet  541 ;  United  States  v.  Percheman. 

p.  2.  7  id.  51 ;  Mitchel  v.  United  States.  0 

-  Vol.  6,  ch.  196,  art  7.  Pet  732 ;  ISIitchell  v.  Tucker,  10  Mo. 

^  The  American  Ins.  Co.  v.  Canter,  1  262 ;  Leitensdorf er  v.  Webb,  20  How. 


20 


LEGISLATIVE    POWER,  ETC. 


tions  having  established  laws,  the  rule  is  that  laws,  usages 
and  municipal  regulations,  in  force  at  the  time  of  the  con- 
quest, remain  in  force  until  changed  by  the  new  sovereign.' 


176 ;  Langdeau  v.  Hanes,  21  Wall  527 ; 
Chicago,  etc.  R  R  Co.  v.  McGliim,  114 
U.  S.  542 ;  Whart.  Am.  L.  §  154. 

•  United  States  v.  Powers'  Heirs,  11 
How.  577 ;  Chew  v.  Calvert,  1  Miss. 
(Walk.)  54 ;  Fowler  v.  Smith,  2  CaL 
39,  568 ;  Blankard  v.  Galdy,  2  Salk. 
411 ;  Macoleta  v.  Packard,  14  CaL  179 ; 
CampbeU  v.  Hall,  1  Cowp.  209. 

Fowler  v.  Smith,  supra,  was  a  case 
which  arose  before  there  was  any 
legislation  of  the  state  of  California 
changing  the  original  Mexican  law 
of  interest  It  was  an  action  to  fore- 
close a  mortgage  for  purchase  money. 
There  was  an  express  promise  to  pay 
interest  at  two  per  cent,  per  month. 
It  was  stated  that  by  the  law  of  Mex- 
ico aU  contracts  to  pay  a  higher  rate 
than  six  per  cent  per  annum,  either 
upon  money  loaned  or  otherwise, 
were  void.  Murray,  J.,  speaking  for 
the  court,  said :  "  I  cannot  approach 
the  point  [error  having  been  alleged 
to  the  ruling  of  the  trial  covu't  that 
the  contract  was  not  usurious]  with- 
out great  hesitation,  weU  knowing 
that  I  shaU  have  to  contend  with 
what,  by  many,  is  considered  the 
settled  rule  upon  tliis  subject  But 
the  frequency  of  these  pleas,  and  the 
growing  disposition  of  counsel  to  ap- 
ply the  principles  of  the  civil  or  Mexi- 
can law  to  every  contract  entered 
into  before  the  passage  of  the  act 
abolishing  all  laws  previously  exist- 
ing in  Cahfornia,  require  that  some 
adjudication  should  be  had  wliich 
may  govern  these  cases  for  the 
futura  The  argument  of  the  appel- 
lant is  based  upon  the  well-recognized 
principle  of  international  law  that 
the  laws  of  a  ceded  country  remain 
in  force  until  changed  by  tlxe  con- 
quering or  acquiring  power.     This 


principle  is  to  be  found  in  almost 
every  work  upon  the  subject  of  na- 
tional law,  and  is  reiterated  and 
affirmed  by  the  courts  of  England 
and  th§  United  States.  Its  appUca- 
tion  to  this  case  can,  however,  only 
be  determined  by  an  examination  of 
the  rule  and  the  pai-ticular  circum- 
stances under  which  it  is  sought  to 
be  appUed. 

"  The  law  of  nations  is  said  to  be 
founded  on  right,  reason,  soiind  mo- 
rality and  justice ;  but  although  it  is 
said  to  be  binding  upon  nations  in 
their  intercom-se  and  transactions, 
still  we  find  the  courts  of  tlie  United 
States  and  Europe  in  many  instances 
differing  in  their  appUcation  of  the 
rules,  and  even  disregarding  them. 
As  the  world  has  advanced  in  civili- 
zation and  learning,  the  influence  of 
religion  has  been  felt  and  recognized 
by  the  christian  countries  of  Em-ope 
in  their  intercourse  with  each  other. 
War  has  been  stripped  of  many  of  its 
most  disgusting  features.  It  is  no 
longer  considered  as  the  normal  con- 
dition of  man  smd  nations ;  but  only 
justifiable  when  resorted  to  to  pre- 
serve national  honor,  prosperity  and 
happiness.    .    .    . 

"  In  an  acquired  territory  contain- 
ing a  population  governed  in  their 
business  and  social  relations  by  a  sys- 
tem of  laws  of  their  own,  well  under- 
stood and  generally  accepted,  it  is  but 
reasonable  that  the  inhabitants  should 
continue  to  regidate  their  conduct 
and  commercial  ti'ansactions  by  then- 
own  laws,  until  the  same  are  changed. 
The  reason  is  obvious  and  founded, 
in  many  instances,  on  the  difference 
of  language  and  systems  of  jurispru- 
dence, the  peculiar  cu-cumstances  of 
the   coimtry,    the  confusion   conse- 


LEGISLATIVE   POWER,  ETC. 


21 


For  a  still  stronger  reason,  this  would  be  true  in  case  of  ac- 
quisitions by  purchase  and  cession.^ 

§  20.  Laws  of  states  in  rebellion. —  The  laws  of  the  insur- 
gent states  passed  during  the  rebelUon,  not  enacted  in  aid  of 


quent  on  such  change,  and  the  time 
necessary  to  ascertain  tlie  appUca- 
bility  of  the  new  laws.  It  will  be 
observed  that  the  rule  presupposes 
that  the  acquired  counti-y  contains  a 
population  governed  by  well  settled 
laws  of  their  own.  Let  us  inquire 
whether  these  reasons  apply  with 
equal  force  to  this  case. 

"  Cahfomia,  at  the  time  of  its  ac- 
quisition by  the  United  States,  con- 
tained but  a  sparse  population.  It 
had  long  been  looked  upon  as  one  of 
the  outposts  of  civilization.  Its  com- 
mercial, agricultural  and  mineral  re- 
Bom'ces  undeveloped,  it  was  consid- 
ered of  little  importance  by  the  Mexi- 
can govermnent  The  body  of  Mexi- 
can laws  had  been  extended  over  it ; 
but  there  was  nothing  upon  which 
tliey  could  act,  and  they  soon  fell 
into  disuse.  The  system  of  govern- 
ment was  patriarchal,  and  adminis- 
tered without  much  regard  to  the 
forms  of  law,  which  were  scarcely 
alike  in  any  two  districts.  Such  was 
the  state  of  the  country  when  tlie  dis- 
coveiy  of  our  mineral  weidtli  roused 
the  whole  civilized  world  to  its  im- 
portance. In  a  few  montlis  the  emi- 
gration from  older  states  exceeded 
live  times  the  original  population  of 
the  coimtiy.  A  state  government  was 
immediately  formed  to  meet  the  wants 
of  this  imexpected  population.  The 
whole  world  was  amazed  by  oiu:  sud- 
den progress;  and  even  the  federal 
government,  startled  from  her  usual 
caution  by  so  novel  a  spectacle,  beheld 
us  take  ovu"  place  as  a  sovereign  state, 
before  her  astonishment  had  subsided. 


Emigration  brought  with  it  business, 
htigation,  and  the  thousand  attend- 
ants that  follow  in  the  tram  of  enter- 
prise and  civilization-  The  laws  of 
Mexico,  written  in  a  different  lan- 
guage, and  founded  on  a  dilTerenl 
system  of  jui'isprudence,  were  to  them 
a  sealed  book.  The  necessities  of 
trade  and  commerce  required  prompt 
action.  This  flood  of  population  had 
desti-oyed  every  ancient  landmark; 
and  finding  no  established  laws  or 
institutions,  they  were  compelled  to 
adopt  customs  for  their  own  govern- 
ment The  proceedings  in  coiirts 
were  conducted  in  the  English  lan- 
guage ;  and  justice  was  administered 
by  American  judges  witliout  regard 
to  Mexican  laws.  Custom  was  for 
all  purposes  law.  No  law  concermng 
usmy  was  recognized  or  supposed  to 
exist  Under  this  pecidiar  system 
tills  coimtiy  acquired  its  present 
wealth  and  prosperitj".  But  it  would 
have  been  much  better  for  tlie  per- 
manent interests  of  this  country,  that 
its  progress  had  been  less  rapid,  if, 
after  escaping  from  tlie  tutelage  of  a 
teiTitorial  government  we  ai"e  to  be 
fettered  by  the  dead  carcass  of  a  law 
which  expired  at  its  bu-th,  for  want 
of  human  tiansactions  on  which  to 
subsist;  the  appHcation  of  whicli 
would  overturn  almost  every  contract 
entered  into  before  the  act  abolishing 
all  laws,  etc., —  would  imhinge  busi- 
ness and  entirely  destroy  confidence 
in  the  country. 

"  There  is  no  case  like  the  present 
to  be  found  in  the  liistory  of  the 
world     In  every  instance  ^ited  in 


1  United  States  v.  Powers'  Heirs,  supra;  McNair  v.  Hunt  5  Mo.  300,  308. 


22 


LEGISLATIVE    POWER,  ETC. 


the  rebellion  but  relating  to  the  domestic  affairs  of  the  people 
of  the  state  as  a  community,  were  valid  after  the  war  and  the 
restoration  of  the  states  to  all  their  rights  in  the  IJnion.^  The 
same  general  form  of  government,  the  same  general  laws  for  the 
administration  of  justice  and  the  protection  of  private  rights, 
which  had  existed  in  the  states  prior  to  the  rebellion,  remained 
dm-ing:  its  continuance  and  afterw^ards.  As  far  as  the  acts  of 
the  states  did  not  impair,  or  tend  to  impair,  the  supremacy  of 
the  national  authority,  or  the  just  rights  of  the  citizens  under 


the  books  the  acquired  country  had  a 
population  of  its  own,  governed  by 
known  laws ;  and  the  rate  of  eniigra- 
lion  had  been  small,  compared  to  the 
number  of  the  original  inhabitants. 
History  may  be  searched  in  vain  for  an 
instance  parallel  with  the  emigration 
to  tbia  country.  If  it  would  be  vm- 
just  to  compel  a  densely  populated 
state  to  take  notice  of  the  laws  of  the 
conqueror  or  acqiui'ing  power,  with- 
out any  other  act  than  that  of  sub- 
mission or  cession,  it  wovild  be  still 
more  unjust  in  this  country,  where 
tiie  American  population  so  greatly 
outnumbered  the  natives,  to  compel 
us  to  apply  then  law,  instead  of  om: 
own,  to  contracts.  In  this  case,  the 
rule  consequent  upon  the  discovery 
of  an  uninhabited  territory  might  al- 
most apply;  and  to  construe  ttiese 
conti'acts  by  a  system  of  laws  not 
adapted  to  the  age  nor  to  the  sphit 
of  our  institiitions,  altering  the  plain 
meaning  of  the  parties,  and  giving  to 
them  conditions  which  were  never 
intended,  would  work  the  grossest  in- 
justice." 

A  rehearing  was  granted,  and  at 
a  subsequent  term  a  different  conclu- 
sion was  arrived  at,  and  the  foregoing 
views  were  rejected.  A  majority  of 
tiie  covui;,  by  Heydenfeldt,  J.,  said; 
"  When  the  territory  now  comprised 
in  the  state  of  California  was  under 
Mexican  dominion,  its  judicial  sys- 
tem was  that  of  the  Roman  law,  modi- 


fied by  Spanish  and  Mexican  legisla- 
tion. Upon  the  formation  of  the  pres- 
ent state  government  that  system  was 
ordained  by  a  constitutional  provis- 
ion to  be  continued  vmtil  it  should  be 
changed  by  the  legislature."  2  CaL 
568.  See  Ryder  v.  Cohn,  37  CaL  69, 
per  Rhodes,  J.,  dissenting. 

When  the  King  of  England  con- 
quers a  countiy,  there,  the  conqueror, 
by  saving  the  hves  of  the  people  con- 
quered, gains  a  right  and  property 
in  such  people,  in  consequence  of 
which  he  may  impose  upon  them 
such  laws  as  he  pleases.  Btit  until 
such  laws  are  given  by  the  conquer- 
ing prince,  the  laws  and  customs  of 
the  conquered  countiy  hold  place, 
imless  they  are  conti-ary  to  the  con- 
queror's rehgion,  enact  something 
malum  in  se,  or  are  silent ;  in  all  such 
cases  the  laws  of  the  conquering 
countiy  prevail.    2  P.  Wms.  75. 

1  Horn  V.  Lockhart,  17  Wall  570 ; 
Texas  v.  White,  7  id.  733 ;  Sprott  v. 
United  States,  20  Wall  459 ;  S.  C.  8 
Ct.  of  CL  499 ;  Wilhams  v.  Bruffy,  96 
U.  S.  176 ;  Watson  v.  Stone,  40  Ala. 
451 ;  Home  Ins.  Co.  v.  United  States, 
8  Ct.  of  CI.  449 ;  Hawkms v.  Filkins,  24 
Ark.  286 ;  Harlan  v.  State,  41  Miss.  566 ; 
BeiTy  V.  Bellows,  30  Ark.  198 ;  Shat- 
tuck  V.  Daniel,  52  Miss.  834 ;  Cook  v. 
Ohver,  1  Woods,  437 ;  Hatch  v.  Bur- 
roughs, id.  439 ;  Seymour  v.  Bailey, 
66  III  288. 


LEGISLATIVE   POWER,  ETC. 


23 


the  constitution,  they  have,  in  general,  been  treated  as  bind- 
ing.i 

These  laws,  necessary  in  their  recognition  and  administra- 
tion to  the  existence  of  organized  society,  were  tlie  same,  with 
slight  exception,  whether  the  authorities  of  the  state  ac- 
knowledged allegiance  to  the  true  or  the  false  federal  power. 
They  were  the  fundamental  principles  for  which  civil  society 
is  organized  into  government  in  all  countries,  and  must  be  re- 
spected in  theu'  administration  under  whatever  dominant  au- 
thority they  may  be  exercised.  It  is  only  when  in  the  use  of 
these  powers  substantial  aid  and  comfort  was  given  or  in- 
tended to  be  given  to  the  rebellion,  when  the  functions  neces- 
sarily reposed  in  the  state  for  the  maintenance  of  civil  society 
were  perverted  to  the  manifest  and  intentional  aid  of  treason 
against  the  government  of  the  Union,  that  these  acts  are  void.^ 

§  21.  Federal  and  state  statutes. —  The  sovereign  power  of 
making  laws  in  the  United  States  is  divided  and  qualified ;  a 
part  is  vested  in  the  federal  congress,  and  a  part  in  the  several 
state  legislatures.  Congress  has  a  legislative  power  only  in 
respect  to  certain  subjects  enumerated  in  the  federal  constitu- 
tion ;  the  state  legislatures  have  a  general  legislative  power 
within  the  several  states.  They  have  not  an  unlimited  power ; 
for  the  power  of  each  is  diminished  by  the  legislative  power 
granted  to  congress,  and  it  is  also  restricted  by  various  pro- 
visions in  the  state  constitutions.'^ 

The  acts  of  congress  passed  in  the  exercise  of  the  enumer- 
ated powers  are  the  supreme  law  of  the  land, —  in  the  states, 
in  the  District  of  Columbia,  in  the  territories  throughout  the 

1  Williams  v.  Bruffy,  96  U.  S.  176;  military   cover,  suspended  co-extcn- 

Keith  V.  Clark,  97  id.  465 ;  Livingston  sively  with  tlieu-  potential  range  tlie 

V.  Jordan,  Chase's  Dec.  454 ;  Selden  government  and  the  laws  of  the  state, 

V.  Preston,  11  Bush,  191 ;  Penny  wit  v.  and  not  only  compelled  but  legalized 

Foote,  27  Ohio  St  600 ;  Ddlard  v.  Alex-  submission  to  the  authority,  however 

ander,    9  Heisk.   719;    Rockhold    v.  spurious,    of    the    de  facto    power. 

Blevins,  6  Baxt  115;  Dow  v.   Jolm-  Baker  v.  Wright,  1  Bush,  500;  Lay 

son,  100  U.  S.  158 ;  Dorr  v.  Gibboney,  v.  Succession  of  O'Neil,  29  La.  Ann. 

3  Hughes,  382.  722;  Raih-oad  v.  Hurst,  11  Heisk.  625. 

2Sprott  V.  United  States,  20  Wall  sDonnell    v.   State,  48    Miss.  679; 

464;  Thorrington  v.  Smith,  8  id.  10.  Thayer  v.  Hedges,  22  Ind.  282;  Blair 

The  occupation  of  a  place  by  a  Confed-  v.  Ridgely,  41  Mo.  63;  Sears  v.  Cot- 

erate  army  and  the  installation  of  a  trell,  5  Midi.  251,  256. 
temporary  civil  government  under  its 


2-i  LEGISLATIVE    POWER,  ETC. 

federal  domain,  or  over  such  part  as  such  acts  are  by  theu" 
terms  intended  to  operate.  The  state  go\''ernment  cannot 
gainsa}"  such  laws,  nor  resist  their  authority.  All  individuals 
within  the  territory  to  which  such  laws  are  applicable  are 
subject  to  theu'  constraining  and  restraining  effect.  In  the 
same  sense,  the  state  laws  are  supreme  within  the  state  on 
aU  the  subjects  to  which  they  constitutionally  relate.  The 
federal  government  cannot  gainsay  such  laws  nor  resist  their 
authority.* 

Both  federal  and  state  laws  in  their  proper  domain  of  sub- 
jects are  supreme  laws  of  the  land ;  the  former  as  concerning 
the  interests  of  all  the  states  or  the  Union,  and  the  latter  as 
concerning  the  local  affairs  and  internal  interests  of  the  par- 
ticular state. 

§  22.  Both  the  federal  and  state  laws  belong  to  one  sys- 
tem, and  though  emanating  from  different  legislative  bodies, 
they  are  not  hostile  nor  foreign  to  each  other.  In  each  state, 
the  laws  of  congress  appHcable  thereto  operate  of  their  own 
vigor.  AU  persons  must  take  notice  of  them,  and  are  pre- 
sumed to  know  them ;  all  branches  of  the  state  government 
take  notice  of  them ;  they  are  within  the  judicial  knowledge  of 
the  state  courts. 

The  laws  of  one  state  are  foreign  to  other  states,  and  are  so 
regarded  in  their  jurisprudence  even  as  administered  in  the 
federal  courts.  But  the  law^s  of  each  state  are  laws  operating 
within  the  territorial  sovereignty  of  the  Union,  and  therefore, 
as  to  the  federal  courts,  they  are  not  foreign  laws.  All  the 
federal  courts  take  judicial  notice  of  the  pubUc  statutes  of  the 
states.  In  Owings  v.  Hull,^  a  resort  was  had  to  the  laws  of 
Louisiana  to  determine  the  evidentiary  value  of  a  copy  of  a 
bill  of  sale  on  record  in  a  notary's  office.  Mr.  Justice  Story, 
speaking  for  the  court,  said :  "  We  are  of  opinion  that  the 
circuit  court  [sitting  in  the  district  of  Maryland]  was  bound  to 
take  judicial  notice  of  the  laws  of  Louisiana.  The  circuit  courts 
of  the  United  States  are  created  by  congress,  not  for  the  pur- 

1  Ableman  v.  Booth,  21  How.  506,  Hunter,  1  Wheat  804,  843 ;  Donnell 

516 ;  Cohens  v.  Vii-ginia,  6  Wheat.  380-  v.  State,  48  IVIiss.  679 ;  Cooley's  Const. 

390  i  Gibbons  v.  Ogden,  9  Wheat.  1 ;  Lim.  7-27. 
Tennessee  v.   Davis,   100  U.  S.  237;        2  9Pet.624 
Ex  parte  Siebold,  id.  371 ;  Martin  v. 


LEGISLATIVE   POWER,  ETC.  25 

pose  of  administering  the  local  law  of  a  single  state  alone,  but 
to  administer  the  laws  of  all  the  states  in  the  Union,  in  cases  to 
which  they  respectively  apply.  The  judicial  power  conferred 
on  the  general  government  by  the  constitution  extends  to 
many  cases  arising  under  the  laws  of  the  dififerent  states. 
And  this  court  is  called  upon,  in  the  exercise  of  its  appellate 
jurisdiction,  constantly  to  take  notice  of  and  administer  the 
jurLsprudcnce  of  all  the  states.  That  jurisprudence  is  then,  in 
no  just  sense,  a  foreign  jurisprudence,  to  be  proved  in  the  courts 
of  the  United  States,  by  the  ordinary  modes  of  proof  by  which 
the  laws  of  a  foreign  country  are  to  be  established ;  but  it  is 
to  be  judicially  taken  notice  of  in  the  same  maimer  as  the  laAvs 
of  the  United  States  are  taken  notice  of  by  these  courts." ' 

§  23.  Territorial  laws. —  It  is  settled  that  congress  has  a 
plenary  power  of  legislation  over  territory  belonging  to  the 
United  States,  subject  to  the  restrictions  resulting  from  our 
repubhcan  system  and  the  constitutional  guaranties  of  per- 
sonal rights.^  "  All  territory,"  says  Waite,  C.  J.,  speaking  for 
the  supreme  court,'  "  within  the  jurisdiction  of  the  United 
States,  not  included  in  any  state,  must  necessarily  be  governed 
by  or  under  the  authority  of  congress.  The  territories  are 
but  political  subdivisions  of  the  outlying  dominion  of  the 
United  States.  They  bear  much  the  same  relation  to  the  gen- 
eral government  that  the  counties  do  to  the  states,  and  con- 
gress may  legislate  for  them  as  states  do  for  their  respective 
municipal  organizations.  The  organic  law  of  a  territory  takes 
the  place  of  a  constitution  as  the  fundamental  law  of  the  local 
government.  It  is  obligatory  on  and  binds  the  territorial  au- 
thorities ;  but  congress  is  supreme,  and,  for  the  purposes  of 
this  department  of  its  governmental  authority,  has  all  the 

1  Pennington  v.  Gibson,  16  How.  80,  j^rinciple,  then,  in  the  courts  of  the 

81;   Raih'oad  Company  v.   Bank  of  United  States,  the  judgment  of  a  state 

Asliland,  13  Wall.   239;   AVoodworth  court  ought  to  be  regarded  as  a  domes- 

V.  Spaff ords,  2  McLean,  1 75 ;  Cheever  v.  tic    judgment  —  a  judgment    given 

Wilson,  9  WaU.  131 ;  Bennett  v.  Ben-  within  the  territorial  sovereignty  of 

nett,  Deady,  309.    In  this  last  case  tlie  United  States,  and  provable  in  the 

Deady,  J.,  said:   "The  national  and  ordinary  way  by  tlie  certificate  of  the 

state   governments,  although  vested  custochan  of  tlie  original  —  the  clerk 

with  distinct  jurisdictions,  are  in  no  of  the  comt" 

sense  foi'eigu  to  each  other,  but  are  ^  Whart.  Am.  L.  §  464. 

subordinate  and  limited  parts  of  one  ^  First  National  Bank  v.  Yankton, 

complete  system  of  government.   On  101  U.  S.  129. 


2G  LEGISLATIVE   POWEE,  ETC. 

powers  of  the  people  of  tlie  United  States,  except  such  as  have 
been  expressly  or  by  implication  reserved  in  the  prohibitions 
of  the  constitution.  In  the  organic  act  of  Dakota  there  was 
no  express  reservation  of  the  power  in  congress  to  amend  the 
acts  of  the  territorial  legislature;  but  none  w^as  necessary. 
Such  a  power  is  an  incident  of  sovereignty,  and  continues  untO 
granted  away.  Congress  may  not  only  abrogate  law^s  of  the 
territorial  legislatures,  but  it  may  itself  legislate  directly  for 
the  local  government.  It  may  make  a  void  act  of  the  terri- 
torial legislature  vahd,  and  a  valid  act  void.  In  other  words, 
it  has  full  and  complete  legislative  authority  over  the  people 
of  the  territories,  and  aU  the  departments  of  the  territorial 
government.  It  may  do  for  the  territories  what  the  people, 
under  the  constitution  of  the  United  States,  may  do  for  the 
states." 

§  24.  The  existence  of  this  authority  in  congress  was  from 
the  early  days  of  the  republic  a  foregone  conclusion.  It  does 
not  rest  on  any  acknowledged  specific  ^rant  in  the  constitu- 
tion, nor  did  it  await  a  discovery  of  any  other  power  from 
which  by  general  agreement  it  was  to  be  implied.  In  Ameri- 
can Insurance  Co.  v.  Canter,^  Marshall,  C.  J.,  said :  "  Perhaps 
the  power  of  governing  a  territory  belonging  to  the  United 
States  which  has  not,  by  becoming  a  state,  acquired  the  means 
of  self-government,  may  result  necessarily  from  the  fact  that 
it  is  not  within  the  jurisdiction  of  any  particular  state,  and  is 
within  the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the  right 
to  acquh-e  territory.  Whichever  may  be  the  som^ce  whence 
the  power  is  derived,  the  possession  of  it  is  unquestioned." 
And  in  another  part  of  the  opinion  he  said :  "  In  legislating 
for  them  [the  territories]  congress  exercises  the  combined 
powers  of  the  general  and  of  a  state  government."  ^  In  the 
late  case  which  has  been  referred  to,*  the  chief  justice,  deliv- 
ering the  opinion  of  the  court,  recognizes  the  same  uncertainty 
of  derivation,  and  repeats  the  announcement  absolutely  that 
the  existence  of  the  power  is  conceded.* 

1 1  Pet.  511,  541.  « In  Dred  Scott  v.  Sandf  ord,  19  How. 

2  Dred  Scott  v.  Sandl'ord,  19  How.  393,  the  learning  on  tliis  point  was 
445 ;  Benner  v.  Porter,  9  How.  242.  exhausted.     In  the  opinion  of    the 

3  First  National  Bank  v.  Yankton,  court,  dehvered  by  Taney,  C.  J.,  it  is 
supra.  said:  "The  counsel  for  the  plaintiff 


LEGISLATIVE   POWEE,  ETC.  'i  i 

§  25.  Territories  have  but  temporary  governments  —  Are 
in  tutelage  to  become  states. —  The  federal  constitution  pro- 
vides for  the  admission  of  new  states.'  The  provision  is  gen- 
eral and  has  been  applied  not  only  to  the  admission  of  new 
states  in  territory  belonging  to  the  government  when  the  con- 
stitution was  adopted,  but  to  new  states  formed  in  newly- 
acquired  territory.  It  has  been  decided  to  be  contrary  to  the 
constitution  to  acquh'e  territory  with  any  other  view  than  to 
the  formation  and  admission  of  new  states.'^ 


has  laid  much  stress  upon  that  article 
iu  the  constitution  wliich  confers  on 
congi-ess  the  power  'to  dispose  of 
and  make  all  needful  rules  and  regu- 
lations respecting  the  territoiy  or 
other  property  belonging  to  the 
United  States ; '  but,  in  the  judgment 
of  the  com't,  that  provision  has  no 
bearing  on  the  present  conti'oversy, 
and  the  power  there  given,  whatever 
it  may  be,  is  confined,  and  was  in- 
tended to  be  confined,  to  the  territory 
which  at  that  time  belonged  to  or 
was  claimed  by  the  United  States, 
and  was  within  their  boimdaries  as 
settled  by  the  treaty  with  Great  Brit- 
ain ;  and  can  have  no  influence  upon 
a  ten-itory  afterwards  acquired  from 
a  foreign  government.  It  was  a  spe- 
cial provision  for  a  known  and  par- 
ticular territory,  and  to  meet  a  pres- 
ent emergency,  and  nothiug  more." 

In  another  part  of  the  opinion  the 
authority  of  congress  over  territory 
subsequently  acquii'ed  was  thus  dis- 
cussed : 

"  And  indeed  the  power  exercised 
by  congress  to  acquire  territoiy  and 
establish  a  government  there,  accord- 
ing to  its  own  unlimited  discretion, 
was  viewed  with  great  jealousy  by 
the  leading  statesmen  of  the  day. 
And  in  the  FederaUst  (No.  38),  writ- 
ten by  ]Mr.  IMadison,  he  speaks  of  tlie 
acquisition  of  the  Northwestern  Ter- 
ritory by  the  confederated  states,  bj- 
the  cession  from  Vii-ginia,  and  the 


establishment  of  a  government  there, 
as  an  exercise  of  power  not  waiTanted 
by  tlie  articles  of  confederation,  and 
dangerous  to  the  hbeities  of  the  peo- 
ple. And  he  m-ges  the  adoption  of 
the  constitution  as  a  secmlty  and 
safeguard  against  such  an  exercise 
of  power. 

"We  do  not  mean,  however,  to 
question  the  power  of  congress  in 
this  respect  The  power  to  expand 
the  territoiy  of  the  United  States  by 
the  admission  of  new  states  is  plainly 
given ;  and  in  the  constiiiction  of  this 
power  by  aU  the  departments  of  the 
government,  it  has  been  held  to  au- 
thorize an  acquisition  of  teiTitoiy, 
not  fit  for  admission  at  the  time,  but 
to  be  admitted  as  soon  as  its  popula- 
tion and  situation  would  entitle  it  to 
admission.  It  is  acquued  to  become 
a  state,  and  not  to  be  held  as  a  colony 
and  governed  by  congress  with  abso- 
lute authority ;  and,  as  the  propriety 
of  admitting  a  new  state  is  committed 
to  the  sound  discretion  of  congress, 
the  power  to  acquu-e  territoiy  for  that 
purpose,  to  be  held  by  tlie  United 
States  until  it  is  m  a  suitable  condi- 
tion to  become  a  state  upon  an  equal 
footing  with  the  other  states,  must 
rest  upon  the  same  discretion." 

1  Sec.  3,  ai-t  4. 

2  In  tlie  majority  opinion  in  Dred 
Scott  V.  Sandford,  ah-eady  cited,  the 
cliief  justice  said :  "  Tliere  is  cei-tainly 
no  power  given  by  tlie  constitution  to 


28 


LEGISLATIVE    POAVEK,  ETC. 


"  The  very  fact,"  says  Mr.  Wharton,  "  that  territories  are 
infant  states,  to  be  admitted  into  the  Union  on  maturity,  shows 
that  they  are  to  be  governed  on  the  same  general  principles, 
as  far  as  is  appUcable,  as  are  states,  just  as  infants,  mutatis 
mutandis,  are  governed  on  the  same  general  principles,  so  far 
as  concerns  safeguards,  as  are  adults."  ^  Only  a  political  change 
is  produced  by  admission  into  the  Union  as  a  state.  Congress 
then  ceases  to  legislate  for  its  people,  or  in  regard  to  their  in- 
ternal and  domestic  concerns.  They  have  thus  been  admitted 
to  the  exercise  of  the  right  of  self-government.  The  territorial 
laws  enacted  by  congress  or  the  local  legislature  continue  in 
force  so  far  as  they  are  consistent  with  the  new  condition  of 
statehood  and  the  provisions  of  the  state  constitution.^ 


the  federal  govemment  to  establisli 
or  maintain  colonies  bordering  on  the 
United  States  or  at  a  distance,  to  be 
ruled  and  governed  at  its  own  pleas- 
ure ;  nor  to  enlarge  its  ten-itorial  Lim- 
its in  any  way,  except  by  the  admis- 
sion of  new  states.  That  power  is 
plainly  given ;  and  if  a  new  state  is 
admitted,  it  needs  no  f  m-ther  legisla- 
tion by  congress,  because  the  consti- 
tution itself  defines  the  relative  rights 
and  powers  and  duties  of  the  state, 
and  the  citizens  of  the  state  and  the 
federal  govemment  But  no  power 
is  given  to  acquhe  a  territoiy  to  be 
held  and  governed  permanently  in 
that  character."  He  amphfies  thus 
on  another  page :  "  The  pruiciple  upon 
which  our  govermnents  rest,  and 
upon  which  alone  they  continue  to 
exist,  is  the  xmion  of  states,  sovereign 
and  independent,  witliin  their  own 
hmits  in  then-  internal  and  domestic 
concerns,  and  bound  together  as  one 
people  by  a  general  government  pos- 
sessing certain  enimierated  and  re- 
stricted powers,  delegated  to  it  by  tlie 


people  of  the  several  states,  and  ex- 
ercising supreme  authority  witliin 
the  scope  of  the  powers  granted  to 
it,  throughout  the  dominion  of  the 
United  States.  A  power,  therefore, 
in  the  general  govemment  to  obtain 
and  hold  colonies  and  dependent  tej- 
I'itories  over  wliich  they  might  legis- 
late "without  resti'iction,  would  be 
inconsistent  with  its  own  existence  in 
its  present  form.  Whatever  it  ac- 
quires it  acquires  for  the  benefit  of 
the  people  of  the  several  states  who 
created  it.  It  is  theii*  trustee  acting 
for  them,  and  charged  with  the  duty 
of  promoting  the  interests  of  the 
whole  people  of  the  Union  in  the  ex- 
ercise of  the  powers  specifically 
granted."  See  historical  notes  in 
opinion  of  Mr.  Justice  CampbeU  in 
same  case,  pp.  507-508.  Whart.  Am. 
L.  §§  4G2,  4G4. 

1  Id.  §  464. 

2  Ante,  §  19.  See  Benner  v.  Porter, 
9  How.  234 ;  Territory  v.  Lee,  2  Mont. 
124;  Am.  Ins.  Co.  v.  Canter,  1  Pet 
511. 


CHAPTER  11. 


THE  LEGISLATURE,  AND  THE  ESSENTIAL  PARLIAMENTARY 
PROCEDURE. 


26.  The  legislatura 

27.  Common-law  record  of  legisla- 

tion conclusive. 

28.  Our  legislative  record. 

30.  Effect  of  constitutional  regula- 
tions of  legislative  procedure. 

83.  States  holding  statutes  conclu- 
sive in  Missouri  and  Missis- 
sippi. 

35.  Same  in  Louisiana,  etc 

36.  Evidence   of   statutes  in  New 

York;  Indiana. 


41 


42, 


46 


Constitutional    regulations     of 
procedure,  where  mandatory. 

Legislative    journals   and  tiles 
are  evidence. 

Presumption  in  favor  of  valid- 
ity of  statutes. 
49.  Required  reading  of  bills, 

51.  Necessity  of  signature  of  pre- 

siding officers. 

52.  How  validity  of  statutes  tried. 
52.  When  acts  should  be  approved. 


'  §  26.  The  legislature. —  It  is  a  primary  requisite  to  the 
enactment  of  laws  that  there  be  a  legal  legislatm-e.  In  time 
and  place  the  members  entitled  so  to  do  must  lawfully  con- 
vene.^ 

The  American  legislature,  acting  under  written  constitutions, 
can  only  exercise  a  delegated  power.  It  must  keep  within  the 
limits  of  power  granted  to  it  and  observe  the  directions  as  to 
membership,  the  time  of  meeting  and  length  of  its  sessions, 
procedure  in  its  deliberations,  the  number  of  votes  necessary 
for  an}^  purpose,  and  the  making  of  its  records. 

When  convened  in  extra  session  and  limited  by  the  consti- 
tution to  business  for  which  the  session  was  specially  called, 
all  acts  passed  relating  to  other  subjects  will  be  void.* 

If  the  constitution  prohibits  the  introduction  of  bills  after  a 
certain  period  in  a  session,  the  regulation  cannot  be  evaded 
by  substituting  new  measures  by  amendment  of  pending  bills.' 


1  Tennant's  Case,  3  Neb.  409 ;  State 
V.  Judge,  29  La.  Ann.  223;  Macou, 
etc.  R.  R.  Co.  V.  Little,  45  Ga.  370; 
Gormley  v.  Taylor,  44  Ga,  76.  See 
Rohrbacker  v.  Jackson,  51  Miss.  735 ; 
People  V.  Hatch,  33  IlL  9,  151. 


2  Davidson  v.  Moorman,  2  Heisk. 
575 ;  Jones  v.  Theall,  3  Nev.  233.  See 
Speed  V.  Crawford,  8  Met.  (Ky.)  207. 

3  Pack  V.  Barton,  47  Midi.  520; 
Powell  V.  Jackson,  51  id.  129.  See 
Sa^-re  v.  Pollai-d,  77  Ala.  608. 


30 


THE    LEGISLATURE,  ETC. 


But  whatever  is  within  the  proper  scope  of  amendment  is  ad- 
missible after  that  period,  and  this  embraces  whatever  is  ger- 
mane to  the  purpose  which  the  bill  had  in  view.  Therefore, 
it  was  held  that  a  bill  to  organize  a  township  might  be  changed 
by  amendment  to  organize  the  same  territory  into  a  county.^ 
§  27.  The  common-law  record  of  legislation  conclusive. — 
The  British  parliament,  including  the  three  great  estates  of 
the  realm  —  the  king,  lords  and  commons, —  possesses  a  tran- 
scendent power.  It  enacts  laws  by  a  procedure  devised  by 
itself,  and  it  is  subject  to  no  paramount  law.  When  a  statute 
is  framed  and  recorded  according  to  its  traditional  forms  as 
an  act  of  parliament,  it  is  a  record  which  expresses  the  will  of 
the  sovereign  power.  General  acts  are  "  enrolled  by  the  clerk 
of  the  parliament,  and  delivered  over  into  the  chancery,  which 
enrollment  in  the  chancery  makes  them  the  original  record." 
Private  acts  filed,  sealed,  and  remaining  with  the  clerk  of  par- 
liament, are  also  original  records.^    The  record  is  deemed  a 


1  Pack  V.  Barton,  supra. 

2  King  V,  Arundel,  Hob.  110;  5 
Comyn's  Dig.  Parliament;  1  PML 
Evi.  316.  Anciently,  the  manner  of 
proceeding  in  parliament  was  much 
different  from  what  it  is  at  the  pres- 
ent day ;  for,  formerly,  the  bill  was  in 
the  form  of  a  petition,  and  these  pe- 
titions were  entered  upon  the  lords 
rolls,  and  upon  these  rolls  the  royal 
assent  was  likewise  entered;  and 
upon  this,  as  a  groundwork,  the 
judges  used,  at  the  end  of  the  parUa- 
ment,  to  draw  up  the  act  of  parUa- 
ment  into  the  form  of  the  statute 
which  was  afterwards  entered  upon 
the  rolls,  caUed  the  statute-rolls; 
which  were  different  from  those 
called  the  lords-rolls,  or  the  rolls  of 
parliament;  upon  these  sta,tute-roll3 
neither  the  bill  nor  petition  from  the 
commons,  nor  the  answer  of  the 
lords,  nor  the  royal  assent,  were  en- 
tered, but  only  the  statute,  as  it  was 
drawn  up  and  penned  by  the  judges ; 
and  this  was  the  method  till  about 
Henry  the  Fifth's  time.  In  his  time, 
it  was  desired  that  the  acts  of  parlia- 


ment might  be  drawn  up  and  penned 
by  the  judges  before  the  end  of  par- 
Uament ;  and  this  was  by  reason  of 
a  complaint  then  made,  that  the  stat- 
utes were  not  equally  and  fairly 
drawn  up  and  worded.  After  the 
parUament  was  dissolved  or  pro- 
rogued in  Henry  the  Sixth's  time,  the 
former  method  was  altered,  and  these 
bills  contenentes  forniam  actus  par- 
Uamenti  were  first  used  to  be  brought 
into  the  house.  The  bills  (before  they 
were  brought  into  the  house)  were 
ready  drawn,  in  the  form  of  an  act 
of  parhament,  and  not  in  the  form  of 
a  petition,  as  before;  upon  which 
bill  it  was  written  by  the  commons, 
soite  baile  al  seigneurs;  and  by  the 
lords,  soit  bayle  al  roye;  and  by  the 
king,  le  roy  le  veut;  aU  this  was  wi-it- 
ten  upon  the  bill,  and  the  bill,  thus 
indorsed,  was  to  remain  with  the 
clerk  of  the  parliament,  and  he  was 
to  enter  the  bill  thus  di-awn  at  first, 
in  the  form  of  an  act  of  parhament 
or  statute,  upon  the  statute  rolls, 
without  entering  the  answer  of  the 
king,  lords  or   commons  upon  the 


THE    LEGISLATURE,  ETC.  31 

higli  record.  It  imports  absolute  verity,  and  must  be  tried  by 
itself,  teste  meipso.  This  is  the  dignity  and  quality  of  all  tech- 
nical records.  ]^o  plea  can  raise  any  other  question  regard- 
ing a  record  than  that  of  its  existence.  Upon  that  issue  the 
record  itself  is  the  only  evidence ;  the  trial  is  merely  by  the 
record.  A  record  or  enrollment  is  a  monument  of  so  high  a 
nature,  and  imports  in  itself  such  absolute  verity,  that  if  it 
be  pleaded  that  there  is  no  such  record  there  is  no  trial  by 
witnesses,  jury  or  otherwise  than  by  the  court  inspecting  the 
record  itself.^  The  court  being  bound  to  take  judicial  notice 
of  the  laws,  no  plea  can  be  necessary  or  permitted  denying  the 
existence  of  the  record  of  an  act  of  parliament.  In  Prince's 
Case  2  it  was  resolved  "  that  against  a  general  act  of  parlia- 
ment, or  such  act  whereof  the  judges  ex  officio  ought  to  take 
notice,  the  other  party  cannot  plead  mil  tiel  record;  for  of  such 
acts  the  judges  ought  to  take  notice ;  but  if  it  be  misrecited 
the  party  ought  to  demur  in  law  upon  it.  And,  in  that  case, 
the  law  is  grounded  upon  great  reason ;  for  God  forbid,  if  the 
record  of  such  acts  should  be  lost  or  consumed  by  fire  or 
other  means,  that  it  should  tend  to  the  general  prejudice  of 
the  commonwealth;  but  rather,  although  it  be  lost  or  con- 
sumed, the  judges,  either  by  the  printed  copy,  or  by  the  record 
in  which  it  was  pleaded,  or  by  other  means,  may  inform 
themselves  of  it,"  ^ 

§  28.  Legislative  records. —  The  conclusiveness  of  records 
is  a  conclusion  of  the  common  law.  We  have  in  America  the 
common  law  so  far  as  it  is  suited  to  our  condition.  A  tech- 
nical record  here  has  the  same  effect  as  by  the  common  laAv  of 
England,  except  as  it  is  modified  by  the  written  law,  or  con- 
ditions are  so  changed  as  to  render  the  common  law  inappli- 
cable. The  conditions  in  respect  to  legislation  in  this  country, 
where  a  mandatory  procedure  is  prescribed  in  a  constitution, 
are  not  the  same  as  in  England.* 

statute   rolls,  and   then    issued  out  '  2  Black.  Com.  331. 

VTits  to  the  sheriffs,  with  transcript  of  -  8  Coke,  28. 

the   statute    rolls,  viz, :    of   the  bill  » Dwarris  on  St  613 ;  Sherman  v. 

drawn  at  first  in  the  form  of  a  stat  Story,  80  Cal.  276 ;  Eld  v.  Gorham,  20 

ute  and  without  the  answer  of  the  Conn.  8. 

king,  lords  and  commons,  to  the  bill,  *  Tlie  dissenting  opinion  of  Smith, 

to  procliiiui  the  statute.    Bac.  Abr,  C,  J.,  in  Green  v,  Weller,  32  Miss.  704, 

title  Court  of  Pai-liament,  F.  is  instructive  on  this  point    lie  says : 


32 


THE    LEGISLATURE,  ETC. 


§  29.  A  legislature  in  our  republican  system  of  government 
is  a  representative  body.  Its  power  is  delegated  by  a  charter 
from  the  people  —  a  constitution.   This  is  a  sacred  instrument, 


"  In  Great  Britain  there  is  no  written 
fundamental  law  defining  and  lini- 
iting  the  powers  of  the  government, 
by  which  the  valicUty  of  the  acts  of 
any  of  the  departments  may  be  tested. 
The  parliament,  in  a  poUtical  and 
legislative  sense,  is  omnipotent  and 
suprema  The  power  and  jm'isdic- 
tion  of  parliament,  says  Lord  Coke, 
ai-e  so  ti'anscendent  and  absolute  that 
it  cannot  be  confined,  either  for 
causes  or  persons,  witliin  any  bounds. 
4  Inst.  36.  'And  so  long,'  adds  Sir 
Wilham  Blackstone,  'as  the  British 
constitution  lasts,  it  may  be  safely 
afiirmed  that  the  power  of  parUa- 
meut  is  absolute  and  imcontroUed.' 
2  Com.  162. 

"A  void  act  of  legislation  neces- 
sarily Implies  the  existence  of  a  su- 
perior and  controlling  power  in  the 
state.  There  are  but  two  conceivable 
reasons  for  which  an  act  can  be  void. 
First,  for  want  of  power  in  the  legis- 
lature to  pass  it  Second,  because  it 
has  not  been  passed  in  the  method 
required  to  make  it  vaUd.  And  the 
universally  received  doctrine  in  Eng- 
land is,  that  an  act  of  parliament  of 
which  the  terms  are  explicit,  and  the 
meaning  plain,  cannot  be  questioned 
or  its  authority  controlled  iu  any 
court  whatever.  The  idea,  therefore, 
of  an  unconstitutional  law  of  parUa- 
ment  can  have  no  existence  imder 
the  English  system  of  government 
The  parliament  rolls,  which  are  ti"an- 
scripts  of  the  acts,  made  up  imder  the 
supervision  of  ofScers  appoiuted  by 
parliament,  and  declared  by  law  to 
be  records,  necessarily,  I  may  say 
naturally,  are  conclusive  evidence  of 
the  existence  of  the  statute,  and  im- 
ply the  due  performance  of  the  nec- 
essary prerequisites  in  their   enact- 


ment It  is  a  rule  which  flows  from 
the  absolute  and  unlimited  jurisdiC" 
tion  and  power  of  parhament 

''The  principles  of  the  conmion 
law,  unsuited  to  our  condition,  or  re- 
pugnant to  the  spirit  of  our  govern- 
ment have  no  existence  within  this 
commonwealth.  It  required  no  act 
of  positive  legislation  to  repeal  them. 
They  have  been  excluded  by  the  si- 
lent operation  of  our  institutions.  It 
is  clear,  therefore,  that  this  rule,  as  a 
principle  of  the  common  law,  can 
have  no  operation  witliin  this  state. 

"For  tinder  the  American  theory 
of  government  the  jus  summi  im- 
perii, the  supreme,  absolute,  uncon- 
trolled authority  does  not  reside  in 
any  of  the  departments  of  the  gov- 
ernment, nor  in  all  of  them  united. 
It  is  inherent  in  the  people,  from 
whom  aU  power  is  derived,  and  upon 
whose  consent  all  government  is 
founded.  The  constitution  derives  its 
existence  from  the  immediate  act  and 
consent  of  the  people.  It  is  a  law  to 
the  government  which  derives  its 
just  powei"S  therefrom,  or  from  the 
assent  of  the  governed,  for  whose 
benefit  that  power  is  intrusted.  As 
the  constitution  is  the  supreme  law, 
aU  the  acts  of  the  government  or  the 
departments  thereof,  done  in  contra- 
vention of  its  provisions,  are  inopera- 
tive and  void.  An  act  of  the  legisla- 
ture which  has  not  been  passed  in 
conformity  with  the  du-ections  of  the 
constitution,  is  equally  void  with  one 
whose  terms  violate  its  provisions. 
Bill  of  Rights,  art  3. 

"  The  judiciary,  like  all  the  depart- 
ments, are  bound  by  the  constitution, 
and  sworn  to  support  it.  It  is,  there- 
fore, their  duty  to  pronounce  an  act 
of  the  legislature  null,  and  to  refusa 


THE    LEGISLATUEEj  ETC.  33 

and  upon  it  as  a  foundation  is  reared  the  whole  faljric  of  our 
civil  government.  It  confers  all  the  powers  deemed  necessary 
to  that  government ;  in  its  limitations  is  all  the  security  of  the 
people  against  usurpation.  Thercf(jre,  it  is  one  of  the  benefi- 
cent axioms  of  our  constitutional  jurisprudence  that  the  peo- 
ple are  the  source  of  all  the  power  possessed  and  exercised  by 
the  organized  state ;  its  restrictions  are  of  the  nature  of  pro- 
hibitions and  mandatory.  The  authority  which  confers  the 
power  to  make  laws  has  the  acknowledged  right  to  qualify  the 
grant  and  peremptorily  regulate  the  exercise  of  the  power 
conferred ;  so  that  acts  of  legislation  to  be  valid  must  not  only 
be  within  the  grant  and  not  exceeding  the  restrictions  im- 
posed, but  also  be  passed  or  adopted  in  the  mode  or  by  the 
procedure  prescribed.^ 

§  30.  Effect  of  coKstitiitional  provisions  prescribing  par- 
liamentary procednre. —  The  federal  constitution  and  that  of 
nearly  every  state  in  the  Union  contain  directions  in  respect 
to  the  manner  of  enacting  as  well  as  of  authenticating  stat- 
utes. These  directions  vary  in  terms  and  to  considerable  ex- 
tent in  substance.  As  to  some  very  important  particulars 
compliance  will  not  appear  upon  the  face  of  the  statute.  The 
procedure  thus  regulated  and  directed  includes  the  meeting  of 
the  two  houses,  their  action  respectively  in  the  introduction, 
amendment  and  passage  of  bills,  communications  between  the 
houses,  the  time  of  presenting  bills  to  the  governor  for  ap- 
proval, and  of  his  action  thereon.  In  part  their  procedure  is 
historically  entered,  and  in  some  particulars  required  to  be  en- 
tered in  the  legislative  journals;  in  part  it  so  occurs  that  ma- 
terial points  will  not  be  or  are  not  required  to  be  mentioned  in 
any  record  or  official  memorial ;  as  for  instance  when  a  bill  is 
presented  to  the  governor,  or  when  he  approves  it.  Legisla- 
tive journals  were  in  use  in  the  British  parliament  at  the  time 

to  give  it  effect,  if  it  be  void  for  either        ^  Legg  v.  Mayor,  etc  42  Md.  203 ; 

of  these  causes."  Moog  v.  Randolph,  77  Ala.  597 ;  Jones 

In  Sherman  v.  Story,  30  CaL  253,  is  v.   Hutchinson,   43    id.    721 ;     Perry 

a  lucid  and  thorough  exposition  of  County  v.   Railroad  Ckx  58  id.  546; 

the  common  law  on  tliis  subject,  and  Moody  v.  State,  48  id.  115 ;  S.  C.  17 

it  seems  to  have  been  properly  ap-  Am.  R  28 ;  Supervisors  v.  Heenan,  2 

plied  to  the  case  under  consideration,  Minn.  330. 
for  there  was  no  departure  from  a 
constitutional  practice  complained  of. 
3 


34  THE    LEGISLATURE,  ETC. 

our  legislative  practice  under  constitutions  commenced,  and 
had  been  for  centuries.  If  the  process  of  enacting  laws  is  not 
regulated  by  constitution;  or  if  so  regulated,  the  provisions 
on  that  subject  are  deemed  addressed  solely  to  the  law-mak- 
ing dej^artment,  the  journals  hold  the  same  place  in  our  polity 
and  jurisprudence  as  is  assigned  to  them  by  the  common  law. 
They  cannot  be  appealed  to  to  impeach  the  regular  record  of 
a  statutory"  enactment.  That  record  whatever  it  may  be  im- 
ports absolute  verity ;  imports  the  regular  enactment  of  the 
statute  by  the  proper  forms  of  legislation ;  it  speaks  in  its  own 
words  the  sovereign  will.  Found  in  the  proper  custody  it 
proves  and  identifies  itself;  it  is  a  record  not  to  be  contra- 
dicted by  the  legislative  journals,  nor  by  any  other  evidence.^ 

§31.  States  holding  statutes  conclusive  —  3Iissouri. —  If 
the  enrollment  or  original  record  of  a  statute  is  regular  on  its 
face ;  that  is,  if  the  act  is  framed  with  no  infirmity  on  its  face,  is 
duly  promulgated,^  or  properly  authenticated  and  deposited 
in  the  proper  office,  it  is  conclusively  presumed  to  have  been 
regularly  enacted ;  the  record  is  invulnerable  to  collateral  at- 
tack and  proves  itself.  This  is  the  rule  in  several  states  having 
constitutions  regulating  the  legislative  procedure  and  requir- 
ing legislative  journals  to  be  kept.  A  leading  case  on  this 
subject  is  Pacific  Railroad  v.  The  Governor.^ 

The  act  under  discussion  had  been  vetoed  by  the  governor, 
and  the  question  was  whether  it  had  been  subsequently  passed 
by  the  proceedings  required  by  the  constitution.* 

1  Sherman  v.  Story,  30  CaL  253 ;  on  the  journal,  at  the  desire  of  any 
People  V.  Burt,  43  id.  560 ;  RaDroad    two  members."    Art.  3,  sec.  18. 

Tax  Cases,  13  Fed.  Rep.  722.   See  ante,  Sec.  21.    "  Bills  may  originate  in 

§  28 ;  post,  §  52.  either   house,  and   may  be  altered, 

2  State  Lotteiy  Co.  v.  Richoux,  23  amended  or  rejected  by  the  other ; 
La.  Ann.  743 ;  S.  C.  8  Am.  R.  602 ;  and  every  biU  shaU  be  read  on  three 
Whited  V.  Lewis,  25  La.  Ann.  568.  different  days  in  each  house,  unless 

3  23  Mo.  353.  two-thirds  of  the  house  where  the 
*  The  case  arose  under  the  constitu-    same    is    depending    shall    dispense 

tion  of  1820,  which  contained  these  with  tliis  rule ;  and  every  bill,  having 

provisions :    ".    .    .    They  [the  houses]  passed  both  houses,  shall  be  signed  by 

shall  each,  from  time  to  time,  pubUsh  the  speaker  of  the  house  of  represent- 

a  journal  of  their  proceedings,  except  atives  and  by  the   president  of  the 

such  parts  as  may,  in  their  opinion,  senate." 

require  secrecy ;   and  the  yeas  and  Art.  4,  sec.  10.     "  Every  bill  which 

nays  on  any  question  shall  be  entered  shall  have  been  passed  by  both  houses 


THE    LEGISLATURE,  ETC.  35 

Scott,  J.,  delivering  the  opinion  of  the  court,  used  this  lan- 
guage :  "  Whilst  the  power  of  the  courts  to  declare  a  law  un- 
constitutional is  admitted  on  all  hands  as  being  necessary  to 
preserve  the  constitution  from  violation,  j^et  such  power  is 
claimed  and  exercised  in  relation  to  laws  which  show  on  their 
face  that  the  constitutional  limit  has  been  transcended.  The  rea- 
son of  this  principle  limits  the  claim  of  jurisdiction  to  such  cases. 
The  constitution  is  designed  to  limit  the  powers  of  the  gov- 
ernment, and  to  confine  each  of  the  departments  to  its  appro- 
priate sphere.  If  the  legislature  exceed  its  powers  in  the 
enactment  of  a  law,  the  courts  being  sworn  to  support  the  con- 
stitution must  judge  that  law  by  the  standard  of  the  constitu- 
tion and  declare  its  [in]validity.  But  the  question  whether 
a  law  on  its  face  violates  the  constitution  is  very  different 
from  that  growing  out  of  the  non-compliance  with  the  forms 
required  to  be  observed  in  its  enactment.  In  the  one  case  a 
power  is  exercised,  not  delegated,  or  which  is  prohibited,  and 
the  question  of  the  validity  of  the  law  is  determined  from  the 
language  of  it.  In  the  otlier,  the  law  is  not,  in  its  terms,  con- 
trary to  the  constitution ;  on  its  face  it  is  regular,  but  resort 
is  had  to  something  behind  the  law  itself  in  order  to  ascertain 
whether  the  general  assembly,  in  making  the  law,  was  gov- 
erned by  the  rules  prescribed  for  its  action  by  the  constitution. 
This  would  seem  like  an  inquisition  into  the  conduct  of  the 
members  of  the  general  assembly,  and  it  must  be  seen  at  once 
that  it  is  a  very  delicate  power,  the  frequent  exercise  of  which 
must  lead  to  endless  confusion  in  the  administration  of  the 
law." 

§  32.  Further  on  in  the  opinion  the  learned  judge  said :  ^ "  The 
sense  of  the  words  in  which  the  forms  to  be  observed  in  lesfis- 

of  the  general  assembly,  shall,  before  to  pass  the  same,  it  shall  be  sent  to- 

it  becomes  a  law,  be  presented  to  the  gether  with  the    objections    to   the 

governor  for  his  approval.     If  he  ap-  other  house,  by  wliich  it  shall  be  in  hke 

prove,  he  shall  sign  it ;  if  not,  he  shall  manner  reconsidered,  and  if  approved 

return  it,  with  his  objections,  to  the  by  a  majority  of  all  the  members 

house  in  which  it  shall  have  origi-  elected  to  that  house,  it  shall  become 

nated,  and  the  house  shall  cause  the  a  law.    In  all  such  cases  the  votes  of 

objections  to  be  entered  at  large  on  both  houses  shall  be  taken  bj-  yeas 

its  journal,  and  shall  proceed  to  re-  and  nays ;  the  names  of  the  persons 

consider  the  bill.  If,  after  such  rccon-  voting  for  and  against  the  bill  shall 

sideration,  a  majority  of  all  the  mem-  be  entered  on  the  jomnal  of  each 

bers  elected  to  tliat  house  shall  agree  hovise  respectively.    ,    .    ." 


36 


THE    LEGISLATUEE,  ETC. 


lation  are  prescribed  may  be  matter  of  doubt.  Different 
opinions  may  be  entertained  as  to  the  meaning  of  the  language 
in  which  they  are  expressed,  as  well  as  to  the  end  or  object  of 
them.  This  very  case  furnishes  an  illustration  of  the  truth  of 
this  remark.  The  members  of  the  general  assembly  may  con- 
scientiously believe  that  they  have  pursued  the  constitutional 
course.^  But  to  give  the  executive  and  judicial  departments  a 
right  to  revise  this  exercise  of  their  judgment,  would  it  not  be 
subjecting  the  legislature  to  a  surveillance  which,  instead  of 
making  it  a  co-ordinate  department,  would  subject  it  to  a  de- 
pendence on  the  others  ?  There  is  a  fitness  in  making  each 
department  the  sole  judge  of  the  rules  prescribed  for  its  con- 
duct ;  this  is  necessary  to  render  them  co-ordinate,  and  not 
dependent  on  each  other.     .     .     .    We  do  not  maintain  that 


1  In  State  v.  Mead,  71  Mo.  266,  the 
conditions  here  deprecated  were  fully- 
adopted  as  a  result  of  subsequent 
changes  in  the  constitution.  The  act 
in  question  was  passed  under  a  con- 
stitution containing  the  following 
provision : 

"  No  bUl  shall  become  a  law  until 
the  same  shaU  have  been  signed  by 
the  presiding  officers  of  each  of  the 
two  houses  in  open  session.  And  be- 
fore such  officer  shall  affix  his  signa- 
ture to  any  bill  he  shall  suspend  all 
other  business,  declare  that  such  bUl 
wiU  now  be  read,  and  that  if  no  ob- 
jection be  made  he  will  sign  the 
same,  to  the  end  that  it  shall  become 
a  law.  The  bUl  shall  then  be  read  at 
length,  and  if  no  objection  be  made 
he  slmll  in  the  presence  of  the  house, 
in  open  session,  and  before  any  other 
business  is  entertained,  affix  liis  sig- 
nature, which  fact  shall  be  noted  on 
the  journal  and  the  bill  immediately 
be  sent  to  the  other  housa  When  it 
reaches  the  other  house  the  presiding 
officer  thereof  shall  immediately 
suspend  all  other  business,  announce 
the  reception  of  the  biU,  and  the  same 
proceedings  shall  thereupon  be  ob- 
served in  every  respect  as  in  the  house 


in  which  it  was  first  signed.  If  in 
either  house  any  member  shall  object 
that  any  substitution,  omission  or 
insertion  has  occurred,  so  that  the 
bOl  proposed  to  be  signed  is  not  the 
same  in  substance  and  form  as  when 
considered  and  passed  by  the  house, 
or  that  any  particular  clause  of  this 
article  of  the  constitution  has  been 
violated  in  its  passage,  such  objec- 
tions shall  be  passed  upon  by  the 
house,  and,  if  sustained,  the  pi^esiding 
officer  shall  witliliold  liis  signature, 
but  if  such  objection  shaU  not  be 
sustained,  then  any  five  members 
may  embody  the  same  over  their 
signatui-es,  in  a  written  protest,  under 
oath,  against  the  signing  of  the  bill. 
Said  protest,  when  offered  in  the 
house,  shall  be  noted  upon  the  jour- 
nal, and  tlie  original  shall  be  annexed 
to  the  biU  to  be  considered  by  the 
governor  in  connection  therewitli." 
The  first  clause  was  held  manda- 
tory, but  the  others  directoiy,  except 
that  in  case  of  protest  they  were  sub- 
mitted with  the  bill  to  the  governor, 
and  to  be  considered  by  him, —  that 
tills  was  the  remedy  provided  by  the 
constitution  for  any  supposed  infrac- 
tion of  those  clauses. 


THE    LEGISLATUEE,  ETC.  37 

the  legislature  can  prevent  a  scrutiny  into  its  acts,  whicli  the 
constitution  designed  should  be  made,  by  any  mode  of  authen- 
tication it  may  adopt.  We  have  endeavored  to  show  that  the 
constitution  never  contemplated  that  ol)joctions  of  the  charac- 
ter urged  against  the  law  whose  validity  is  now  under  consid- 
eration should  be  raised  against  a  bill  passed  with  the  approval 
of  the  governor.  There  is  no  reason  Avhy  objections  of  Uke 
character  should  be  raised  against  a  bill  passed  against  his 
will.  .  ,  .  Upon  the  whole,  we  are  of  the  opinion  that  the 
objections  taken  against  the  mode  of  passing  this  law  by 
the  general  assembly  on  its  reconsideration  are  untenable,  and 
the  constitution  and  law  preclude  an  inquiry  as  to  the  exist- 
ence of  such  objections ;  the  constitution  regarding  the  provis- 
ions alleged  to  have  been  violated  in  the  passage  of  this  law 
as  merely  directory,  and,  being  so,  a  departui'e  fi'om  them, 
even  if  there  was  a  departure,  would  not  render  the  law  void." 
§  33.  Statute-record  conclusive  in  Louisiana  and  Mis- 
sissippi.—  All  the  constitutions  of  Louisiana  have  required 
each  house  of  the  general  assembly  to  keep  and  publish  weekly 
a  journal  of  its  proceedings,  and  to  enter  therein  the  yeas  and 
nays  of  the  members  on  any  question  at  the  desu'e  of  any  two 
of  them.  And  also  has  provided  that  "  Ko  bill  shall  have  the 
force  of  a  law  until  on  three  several  days  it  be  read  in  each 
house  of  the  general  assembly,  and  free  discussion  be  allowed 
thereon,  unless,  in  case  of  urgenc}^,  four-fifths  of  the  house 
where  the  bill  shall  be  depending  deem  it  expedient  to  dis- 
pense with  this  rule."  In  State  Lottery  Co.  v.  Eichoux,^  it 
was  said  by  the  court :  "  When  a  legislative  act  is  duly  pro- 
mulgated according  to  the  constitution  and  laws  under  which 
it  is  passed,  we  find  no  authority  in  the  judiciary  department 
to  look  behind  it  and  determine  its  validity  or  invalidity  fi'om 
the  proceedings  of  the  general  assembly  in  adopting  it.  Such 
a  course,  it  would  seem,  is  not  sustainable  on  the  theory  of  the 
independent  and  separate  action  of  the  three  branches  of  the 
state  government.  Where  a  legislative  act  is  attacked  on 
the  ground  that  it  contains  provisions  that  are  unconstitu- 
tional, the  question  of  its  validity  is  properly  within  the  scoi>e 
of  judicial  action.     The  courts  have  power,  when  a  constitu- 

123  La.  Ann.  743;  S.  C.  8  Am.  R.  603.    See  Whited  v.  Lewis,  35  La. 
Ann.  568. 


38  THE   LEGISLATURE,  ETC. 

tional  question  is  raised,  to  examine  whether  the  thing  ordered, 
permitted  or  forbidden  to  be  done  may  have  effect  under  the 
sanction  of  the  constitution.  The  question  should  be,  is  the 
law  itself  constitutional  as  to  its  provisions  and  what  it  de- 
clares, and  not  whether  it  is  constitutional  as  to  the  manner 
of  its  enactment  or  the  proceedings  by  which  it  was  enacted." 

§  3-4.  In  Mississippi  the  same  subject  was  thus  discussed  in 
Green  v.  Weller : ^  "It  may  be  that  legislative  acts  may  be 
passed  without  a  compliance  with  the  requii'ements  of  the  con- 
stitution. If  such  defect  or  violation  appear  on  the  face  of  the 
act,  or  by  that  which  constitutes  the  record,  which  can  be  ju- 
dicially noticed,  the  power  of  the  court  to  determine  the  ques- 
tion is  indisputable.  But  if  the  proper  record  shows  that  the 
act  has  received  the  sanctions  requu-ed  by  the  constitution  as 
evidence  of  its  having  been  passed  agreeably  to  the  constitu- 
tion, and  its  provisions  be  not  repugnant  to  the  constitution, 
the  regularity  and  stability  of  government  and  the  peace  of 
society  require  that  it  should  have  the  force  of  a  valid  law."  ^ 

§  35.  Same  —  In  other  states. —  The  constitution  of  ]N"evada 
requires  particular  proceedings  in  the  passage  of  a  legislative 
act.  Each  house  must  keep  a  journal  of  its  own  proceedings 
which  shall  be  published ;  that  "  every  bill  shall  be  read  by 
sections  on  tliree  several  days  in  each  house,  unless  in  case  of 
emergency  two-thirds  of  the  house  where  such  bill  may  be 
pending  shall  deem  it  expedient  to  dispense  with  this  rule; 
but  the  reading  of  a  biU  by  sections  on  its  final  passage  shaU. 
in  no  case  be  dispensed  with,  and  the  vote  on  the  final  passage 
of  any  biU  or  joint  resolution  shall  be  taken  by  yeas  and  nays 
to  be  entered  on  the  journals  of  each  house ;  and  a  majority  of 
all  the  members  elected  to  each  house  shaE  be  necessary  to 
pass  every  bill  or  joint  resolution ;  and  all  bills  or  joint  resolu- 
tions so  passed  shall  be  signed  by  the  presiding  officers  of  the 
respective  houses,  and  by  the  secretary  of  the  senate  and  clerk 
of  the  assembly."  '^  It  is  there  held  that  the  court,  for  the 
purpose  of  informing  itself  of  the  existence  and  terms  of  a  law, 
cannot  look  beyond  the  enrolled  act  certified  by  these  offi- 
cers who  are  charged  by  the  constitution  with  the  duty  of 

1  32  ]VIiss.  G90.  3  Art.  4,  sec.  18. 

2  Const.  1868,  art.  4,  sees.  14,  23.  See 
Swann  v.  Buck,  40  Miss.  268. 


THE    LEGISLATURE,  ETC 


39 


certifying  and  with  the  duty  of  deciding  what  laws  have  been 
enacted.^  Like  rulings  have  been  made  under  similar  con- 
stitutional provisions  in  Pennsylvania,^  lowa,^  Kew  Jersey  * 


1  State  V.  Swift,  10  Nov.  17C ;  Staoe 
V.  Gleun,  18  id.  39. 

2  Const  1873,  art.  3,  sec.  4 ;  art  2, 
sec.  12;  Commonwealth  v.  Martin, 
107  Pa.  St  185 ;  Kilgore  v.  Magee,  85 
id.  412. 

3  Const  1846,  art  3,  sees.  &,  11; 
Const  1857,  art  3,  sees.  9,  17 ;  Clare 
V.  State,  5  Iowa,  510 ;  Dmicombe  v. 
Prindle,  12  id.  1. 

4  Const  1876,  art  4,  sec.  4.    In  tlie 
leading  case  in  that  state  on  this  sub- 
ject (Paugborn  v.  Young,  32  N.  J.  L. 
29),  the  court  by  Beasley,  C.  J.,  said : 
"  From  the  earliest  times,  so  far  as  I 
am  able  to  ascertain,  it  has  been  tlie 
invariable  course  of  legislative  prac- 
tice in  tliis  state,  for  tlie  si)eaker  of 
each  house  to  sign  the  bill  as  linally 
engrossed  and  passed.     It  is  likewise 
certified  by  indorsement  by  the  clerk 
of  the  liouse  in  Avliich  it  originated. 
Witli  tliese  attestations  of  authentic- 
ity upon  it,  it  is  then  tiled  in  the  of- 
fice of  the  secretary  of  state.    Tliis 
has  been  tlie  coiu-se  of  proceeding 
from  certainly  a  very  remote  period 
to  the  present  tune ;  under  our  pres- 
ent constitution  tlie  written  ai)proval 
of  the  governor  is  requisite.     There 
seems,    therefore,    to    be    no    doubt 
whatever  that  these  copies,  thus  au- 
thenticated and  filed,  are  to  be  re- 
gai'ded  as  enrolled  bUls,  con-espond- 
ing  in  then*  general  character,  and 
partakuig,  if  not  in  all,  at  least  in 
most  respects,  of  the  nature  of  par- 
liamentary rolls.    In  the  statute  book 
they  are  frequently  referred  to  as  en- 
rolled bills;   and  if  we  go  back  to 
provincial  times    we  find    indorsed 
upon  these  copies,  with  the  executive 
approval,  a  direction  to  enroll  them, 
winch  meant  nothing  more  than  to 
tile  them.    These  are  the  character- 


istics and  nature  of  the  copies  of  leg- 
islative bUls  deposited   according  to 
the  ordinary  routine  in  the  office  of 
the  secretary  of   state.    .    .    .    The 
principal  argument  in  favor  of  this 
judicial  appeal  from  the  enrolled  law 
to  the  legislative  journal,  and  which 
was  much  pressed  in  the  discussion 
at  tlie  bar,  was,  that  the  existence  of 
this  power  was  necessary  to  keep  the 
legislatm-e    from    overstepping    tlie 
bounds    of    the   constitution.     The 
course  of  reasoning  urged  was  that 
if  the  court  cannot  look  at  the  facts 
and  examine  the  legislative  action, 
that  department  of  the  government 
can,  at  will,  set  at  defiance,  in  the  en- 
actment of  statutes,  the  restraints  of 
the    organic  law.      Tliis    argument 
however  specious,  is  not  sohd."    The 
answer  of  the  court,  briefly  stated, 
was  that  if  the  legislature  intends  a 
violation  of  the  constitution  in  the 
enactment  of  a  statute  it  is  futile  to 
rely  on  its  journals  or  any  exti'iusic 
evidence  to  show  tlie    irregularitj-. 
The  journals  are  imder  its  duection, 
and  not  kept  nor  authenticated  in  a 
manner  to  weigh  as  evidence  against 
enrolled  acts.     "  In  my  estimation," 
said  the  chief  justice,  "  the  docti'ine 
in  question  if  entertained  would,  as 
against  legislative  encroachments,  be 
useless  as  a  guard  to  the  constitution, 
and  it  certainly  would  be  attended 
with  many  evils.     Its  practical  appli- 
cation would  be  full  of  embaiTass- 
nient     If  the  courts,  in  order  to  test 
the  validit}'  of  a  statute,  are  to  draw 
the  compai'ison  between  the  enrolled 
copy  of  an  act  and  tlie  entries  on  the 
legislative  journal,  how  great,  to  have 
the  elTect  of  exploding  the  act  must 
be  tlie  discrepancy  befsveen  the  two? 
Will  the  omission  of  any  provision, 


40  THE    LEGISLATURE,  ETC. 

and  jSTew   York  since  the  adoption  of  the  constitution  of 

1846.1 

§  36.  Evidence  of  statutes  iu  New  York.—  Though  the  con- 
stitution of  New  York  provides  that  the  votes  requhed  on 
the  passage  of  bills  shall  be  taken  by  yeas  and  nays  and  en- 
tered on  the  journals,  it  is  nevertheless  held  that  a  certificate 
made  pursuant  to  a  statute  by  the  secretary  of  state  on  acts 
being  deposited  in  his  office,  certifying  the  day,  month  and  year 
when  the  same  became  a  law,  excludes  all  resort  to  any  other 
evidence  of  its  passage,  and  makes  the  act  so  deposited  and 
certified  the  original  record  of  it,  invulnerable  under  the  com- 
mon-law rules  applicable  to  enrolled  acts  of  parliament.  The 
statute  2  provides  that  such  certificate  shall  be  conclusive  evi- 
dence of  the  facts  therein  declared.^ 

§  37.  Same  —  State  of  Indiana. —  The  Indiana  constitution 
of  1851  required  each  house  to  keep  a  journal  of  its  proceed- 
ings and  publish  the  same.*  It  also  provides  that  "  every  biU 
shall  be  read  by  sections,  on  three  several  days  in  each  house, 
unless,  in  case  of  emergency,  tAvo-thirds  of  the  house  where 
such  bill  may  be  depending  shall,  by  a  vote  of  yeas  and  nays, 
deem  it  expedient  to  dispense  with  this  rule ;  but  the  read- 
ing of  a  biU  by  sections,  on  its  final  passage,  shall  in  no  case 

no  matter  how  unimportant,  liave  given  to  tlie  judiciary,  to  inquii-e  into 
that  effect?  Tlie  difficulty  of  a  satis-  tlie  veracity  of  the  certificate  by 
factory  answer  to  tliese  and  similar  which  tlie  legislature  by  its  officers 
inteiTOgatories  is  too  apparent  to  need  authenticates  its  enactments.  In  the 
comment.  And,  again,  to  notice  one  opinion  of  the  court,  the  power  to 
among  the  many  practical  difficul-  certify  to  the  public  laws  itself  has 
ties  which  suggest  themselves,  what  enacted  is  one  of  the  trasts  of  the 
is  to  be  the  extent  of  the  application  constitution  to  the  legislatm-e  of  the 
of  this  docti-ine?    If  an  enrolled  stat-    state. 

ute  of  tliis  state  does  not  carry  witliin        »  Art.  3,  sees.  11,  15 ;  People  v.  Su- 
itself  conclusive  evidence  of  its  own    pervisors,  8  N.  Y.  317,  327,  328. 
authenticitjs  it  would  seem  that  the        2 1  R,  s.  p.  187,  §§  10,  11. 
same  principle  must  be  extended  to        3  See  People   v.  Devhn,  33    N.  Y. 
the  statutes,  however  authenticated,    369,  283 ;   People  v.    Commissioners, 
of  other  states."    The  court  also  men-    54  id.  276 ;  Purdy  v.  People,  4  Hill, 
tions  that  m  the  frame  of  the  state    384 ;  People  v.  Purdy,  2  id.  31 ;  De- 
govemment  there  are  tliree  co-ordi-    Bow  v.  People,  1  Denio,  14 ;  Warner 
nate  branches,  in   aU  things   equal    v.  Beers,  23  Wend.  125 ;  Thomas  v. 
and  independent,  each  in  its  sphere    Dakin,  22  id.  9. 
tiie  trusted  agent  of  the  public ;  and        *  Ai't.  4,  sec.  13. 
it   is   arrogating   an  authority,  not 


TUE    LEGISLATUKE,  ETC.  41 

be  dispensed  with ;  and  the  vote  on  the  passage  of  every  bill 
or  joint  resolution  shall  be  taken  by  yeas  and  nays."  ^  By  an- 
other section  it  is  declared  that  "  a  majority  of  all  the  mem- 
bers elected  to  each  house  shall  be  necessary  to  pass  every  bill 
or  joint  resolution ;  and  all  bills  and  joint  resolutions  so  passed 
shall  be  signed  by  the  presiding  officers  of  the  respective 
houses."  '^  A  like  vote  after  a  veto  will  adopt  the  bill,  and 
give  it  the  force  of  law;  but  no  similar  certificate  of  the  pre- 
siding officers  in  that  case  is  provided  for.'  If  the  governor 
fail  for  three  days,  Sundays  excepted,  to  act  upon  a  bill  after 
it  is  presented  to  him,  it  becomes  a  law  without  his  signature, 
unless  a  general  adjournment  prevents  its  return,  and  he  does 
not,  within  five  days  after  the  adjournment,  file  his  objections 
thereto  in  the  office  of  the  secretary  of  state.  Xo  verifica- 
tion of  these  facts  appears  to  be  provided  for  in  the  constitu- 
tion preliminary  to  the  deposit  of  the  act  with  the  secretary 
of  state.  The  constitution  also  prohibits  the  presentation  to 
the  governor  of  any  bill  during  the  last  two  days  before  the 
final  adjournment. 

§  38.  In  Evans  v.  Browne,*  the  act  appears  without  the  gov- 
ernor's approval.  It  Avas  accompanied,  however,  by  a  state- 
ment signed  by  the  governer,  and  it  may  be  inferred  he  caused 
it  to  be  filed.  In  his  statement  he  explains  that  it  was  a  house 
bill  amended  in  the  senate,  and  the  amendments  concm-red  in 
by  the  house  the  day  after  forty-two  members  had  resigned 
by  delivering  their  resignations  to  him  in  writing,  and  thereby 
as  clauned  reducing  the  number  below  a  constitutional  quorum. 
The  biU  was  certified  by  the  presiding  officers.  It  was  held 
that  where  a  statute  is  authenticated  by  the  signature  of 
the  presiding  officers  of  the  two  houses,  the  courts  wUl  not 
search  further  to  ascertain  whether  such  facts  existed  as  gave 
constitutional  warrant  to  those  officers  to  thus  authenticate 
the  act  as  having  received  legislative  sanction  in  such  manner 
as  to  give  it  the  force  of  law.  The  court  say :  ''  The  f ramers 
of  our  govermnent  have  not  constituted  it  [the  judiciary] 
with  faculties  to  supervise  co-ordinate  departments  and  cor- 
rect or  prevent  abuses  of  their  authority.  It  cannot  authenti- 
cate a  statute;  that  power  does  not  belong  to  it;  nor  can  it 

» Ai-t  4,  sec.  18.  'See  art  5,  sec.  14. 

■i  Art  i,  sec  20.  ^COIml  514. 


42  THE    LEGISLATUEE,  ETC. 

keep  the  legislative  journal.  It  ascertains  the  statute  law  by 
looking-  at  its  authentication,  and  then  its  function  is  merely 
to  expound  and  administer  it.  It  cannot,  we  think,  look  be- 
yond that  authentication,  because  of  the  constitution  itself." 

§  39.  In  Bender  v.  State,^  it  was  held  not  for  the  court  to  look 
beyond  the  enrolled  act  of  the  legislature  to  ascertain  whether 
there  had  been  a  compliance  with  the  injunction  of  the  consti- 
tution that  "  'No  bill  shall  be  presented  to  the  governor  within 
the  last  two  days  next  preceding  the  final  adjournment  of  the 
general  assembly."  ^ 

§  40.  It  thus  appears  that  in  these  several  states  legislative 
acts  may  be  em'oUed ;  that  is,  become  of  record  in  the  ofiice 
of  the  secretary  of  state  by  agencies  not  appointed  in  the  con- 
stitution, and  without  any  verification  on  certain  points  as  to 
which  there  are  positive  directions  or  prohibitions  in  the 
constitution,  without  verification  by  any  ofiicer  charged  in 
the  constitution  with  the  duty  to  know  the  essential  facts,  or 
standing  in  such  relation  to  the  people  that  in  his  certificate 
should  be  reposed  an  abs0i.ate  confidence  that  the  require- 
ments of  the  constitution  have  been  obeyed  in  all  the  pro- 
cedure which  it  regulates.  If  it  may  be  said  that  there  are  no 
certificates  requu-ed  by  the  constitution  to  authenticate  the 
journals,  so  it  may  be  said  that  none  is  so  required  to  verify 
the  entire  process  of  enactment,  whether  the  act  be  enrolled 
with  or  without  executive  approval. 

The  printed  statutes  under  all  the  authorities  may  be  cor- 
rected by  reference  to  the  enrolled  act,  especially  if  the  dis- 
crepancy is  pointed  out  before  pubhc  acquiescence  in  or  ratifi- 
cation of  the  statute  as  pubhshed.  ^ 

1 53  Ind.  254  1868,  art.  4,  §  25 ;  Const  1866,  art  5, 

2  In  the  Texas  constitution  the  gov-  §  17. 

eruor  must  act  on  every  bill  presented  ^  Hulburt  v.  Merriam,  3  Mch.  144 ; 

to  him  one  day  previous  to  the  ad-  Reed  v.  Clark,  3  McLean,  480 ;  People 

journment  of  the  legislature  before  v.  Commissioners,  54  N.  Y.  276 ;  Greer 

the  adjournment ;  otherwise  it  will  v.  State,  54  Miss.  378 ;  De  Bow  v.  Peo- 

become  a  law  without  his  approval ;  pie,  1  Denio,  9 ;   Rex  v.  Jefferies,   1 

and  under  it  it  is  held  that  the  gov-  Strange,  446. 

ernor  must  have    the    bill  at  least  It  was  held  in  Town  of  Pacific  v. 

twenty-four    hours    before    the    ad-  Seifert  79  Mo.  210,  that  the  original 

journment     Hyde  v.  White,  24  Tex.  roU,  as  deposited  with  the  secretary 

137 ;  Const  1845,  art.  5,  §  17 ;  Const  of  state,  is  the  best  evidence  of  a  leg- 


THE   LEGISLATUKE,  ETC.  43 

§  41.  Constitutional  regulations  of  procedure,  where  man- 
datory.—  The  authority  of  the  organic  law  is  uuiversally  ac- 
knowledged; it  speaks  the  sovereign  will  of  the  people.  The 
sovereign  power  of  the  state  being  inherently  in  them,  their 
injunctions  in  the  constitution  regarding  the  process  of  legisla- 
tion is  as  authoritative  as  are  those  touching  the  substance  of 
it.  If  the  former  are  treated  as  directory  to  the  legislature, 
acts  passed  in  violation  of  them,  either  by  intention,  inad- 
vertence, or  erroneous  construction,  are  nevertheless  vahd; 
and  the  same  would  be  true  of  like  violations  of  the  constitu- 
tion in  respect  to  the  substance  of  legislation.  The  law  has 
always  been  recognized  as  clear  and  indisputable,  and  has  been 
settled  without  dissent,  that  acts  which  are  unconstitutional 
on  their  face  are  nullities.  And  it  was  settled  early  in  our 
constitutional  jurisprudence  that  it  was  the  peculiar  function 
and  duty  of  the  judiciary  to  pronounce  on  then'  validity.  In 
the  exercise  of  this  function  the  judiciary  docs  not  trench  on 
the  domain  of  the  legislative  department,  though  it  pronounces 
judgment  on  its  official  work.  The  courts  are  bound  bv  stat- 
utes when  they  are  constitutional,  but  when  otherwise  it  is 
the  duty  of  the  courts  to  treat  them  as  void.  Acts  which  con- 
travene any  provision  of  the  constitution  in  their  substance 
are  invalid  though  the  constitution  has  not  declared  that  con- 
sequence. The  function  of  the  courts  is  the  same  to  deter- 
mine the  validity  of  acts  questioned  on  the  ground  of  having 
been  passed  by  a  proceeding  not  in  accordance  with  the  pro- 
cedure prescribed  in  the  constitution.  In  a  large  majority  of 
the  states  in  which  the  question  has  arisen,  the  courts  have 

islative  enactment.  Wliere,  however,  tion  of  the  defendant  upon  tlie  trial, 
there  is  a  discrepancy  between  the  about  twenty  years  after  the  euact- 
charter  of  the  town  as  pubUshed  in  nient  of  the  chai'ter,  in  an  action  by 
the  printed  laws  of  the  state  and  the  tlae  town  to  recover  of  him  tlie  pen- 
statute  roll  on  file  in  the  office  of  the  alty  of  ^90  for  refusing  to  take  out  a 
secretary  of  state  in  this,  that  in  the  merchant's  hcense  as  required  by  au 
former  it  was  provided  that  the  ordinance,  it  was  held  that,  uuder 
trustees  of  the  town  might  impose  these  exceptional  circumsUuices,  tlie 
fines  for  breach  of  any  of  the  ordi-  printed  copy  of  tlie  charter  shuukl 
nances  not  to  exceed  twenty  dollars  control  in  determining  the  defend- 
in  amount,  and  in  the  latter  the  word  ant's  liability.  See  Att'y-General  v. 
twenty  was  ninety,  and  for  aught  that  Joy,  55  Mich.  94;  Pease  v.  Peck,  18 
appeared  on  the  record  this  discrep-  How.  595. 
ancy  was  first  brought  to  the  atten- 


44 


THE    LEGISLATURE,  ETC. 


held  constitutional  provisions  in  reference  to  parliamentary- 
procedure  in  legislation  to  be  mandatory,  and  against  permit- 
tiuo-  any  careless  or  dishonest  officer's  certificate  or  use  of  the 
great  seal,  or  filing  for  record  of  documents  having  the  form 
of  legislative  acts,  to  give  the  force  of  law  to  such  acts,  if  they 
have  not  been  constitutionally  enacted.  These  courts  unite  in 
holding  that  a  valid  statute  can  be  passed  only  in  the  manner 
prescribed  by  the  constitution ;  and  when  the  provisions  of  that 
instrument  in  regard  to  the  manner  of  enacting  laws  are  dis- 
regarded in  respect  to  a  particular  act,  it  will  be  declared  a 
nullity  though  having  the  forms  of  authenticity.^ 

§  42.  Legislath  e  journals  aud  files  as  evidence. —  The  sub- 
ject of  proof  has  been  a  prominent  one  in  the  discussion  of  the 
constitutional  provisions  relative  to  legislative  procedure. 
The  inconvenience,  and  sometimes  great  hardship,  to  the  pub- 
lic resulting  from  allowing  records  and  published  statutes  to 
be,  at  any  time,  modified  or  avoided  by  extrinsic  evidence 
has  been  the  principal  cause  of  the  diversity  of  judicial  opinion 


1  Legg  V,  Mayor,  etc.  42  Md.  203 ; 
Berry  v.  Baltimore,  etc.  R.  R.  Co.  41 
id.  446 ;  S.  C.  20  Am.  R.  69 ;  People 
V.  Malianey,  13  Mich.  481 ;  Green  v. 
Graves,  1  Doug.  351 ;  Att'y-General 
V.  Joy,  55  Mich.  94 ;  Meracle  v.  Dowm, 
64  Wis.  323;  South  Uttawa  v.  Per- 
Mns,  94  U.  S.  260 ;  State  v.  Piatt,  2  S. 
C.  150 ;  S.  C.  16  Am,  R.  647 ;  State  v. 
McLelland,  18  Neb.  236 ;  Board  of  Su- 
pervisors V.  Heenan,  2  Mimi.  330; 
State  V.  Hastings,  24  IMinn.  78 ;  Bm-t 
V.  Winona,  etc.  R.  R.  Co.  31  id.  472 ; 
S.  C.  4  Am.  &  Eng.  Cor.  Cas.  426 ; 
Wise  V.  Bigger,  79  Va.  369 ;  Fowler  v. 
Peirce,  2  CaL  165 ;  Smithee  v,  Camp- 
■  bell,  41  Ark.  471 ;  Webster  v.  Little 
Rock,  44  Ark.  536 ;  Worthen  Covmty 
Clerk  V.  Badgett,  32  id.  496 ;  State  v. 
Little  Rock,  etc.  R.  R,  Co.  31  id.  701 ; 
State  V.  Crawford,  35  id.  237 ;  Vin- 
sant  V.  Knox,  27  id,  266 ;  Smithee  v. 
Garth,  33  id.  17 ;  Burr  v.  Ross,  19  id. 
350;  Post  V.  Supervisors,  105  U.  S. 
667;  State  v.  Francis,  26  Kan.  724; 
WDlianis  v.  State,  6  Lea,  549 ;  Gaines 


V.  Horrigan,  4  Lea,  608 ;  Memphis  F. 
Co.  V.  Mayor,  4  Cold.  419 ;  Spangler  v. 
Jacoby,  14  111.  297 ;  People  v.  Stame, 
35  id.  121 ;  Ryan  v.  Lynch,  68  id.  160 ; 
Miller  v.  Goodwin,  70  id.  659 ;  People 
V.  DeWolf,  62  id.  253 ;  Houston,  etc. 
R.  R.  Co.  V.  Odum,  53  Tex.  343; 
Blessing  v.  Galveston,  42  id.  641; 
Opinion  of  Justices,  35  N.  H.  579,  53 
id.  622 ;  Weill  v.  Kenfield,  54  CaL  111 ; 
County  of  San  Mateo  v.  R.  R.  Co.  8 
Sawyer,  238 ;  S.  C.  8  Am.  &  Eng.  R 
R.  Cas.  1 ;  Moog  v.  Randolph,  77  Ala. 
597 ;  Jones  v.  Hutcliinson,  43  id.  721 , 
Perry  Covmty  v.  R,  R.  Co.  58  id.  546 ; 
Dane  v.  McAithui-,  57  id.  454 ;  Moody 
V.  State,  48  id.  115 ;  S.  C.  17  Am.  R 
28;  Sayre  v.  PoUard,  77  Ala.  608; 
State  V.  Buckley,  54  id.  599 ;  Steia  v. 
Leeper,  78  id.  517 ;  Osburn  v,  Staley,  5 
W.  Va.  85 ;  S.  C.  13  Am.  R  640 ;  Gard- 
ner V.  CoUector,  6  Wall.  499 ;  State  v. 
SmaUs,  11  S.  C.  263 ;  State  v.  Hagood, 
13  S.  C.  46 ;  Bond  Debt  Cases,  12  id. 
200 ;  Lyman  v.  Martin,  3  Utah,  136 ; 
Brown  v.  Nash,  1  Wyoming,  85. 


THE    LEGISLATUKE,  ETC.  45 

which  exists  on  this  subject.  The  tendency,  however,  of  the 
law's  growth  is  to  preserve  the  supremacy  of  constitutional 
authority,  leaving  it  to  the  wisdom  of  the  legislature  to  mit- 
igate any  incidental  inconvenience  by  closer  observance  of  the 
prescribed  procedure,  and  more  diligent  attention  to  the  mak- 
ing and  preservation  of  a  public  record  of  the  essentials.  The 
cases  cited  in  the  preceding  section  hold  the  constitutional 
injunctions  imperative;  and  as  the  constitutions  require  the 
ke3ping  and  publication  of  legislative  journals,  these  are  treated 
as  sources  of  information  to  be  relied  on  by  the  courts  as 
well  as  the  public.  In  Fordyce  v.  Godman,^  the  court  say 
"  if  it  could  be  shown  that  the  requisite  vote  were  not  given 
on  the  passage  of  a  bill,  and  the  evidence  were  rejected  be- 
cause the  })ill  was  properly  authenticated,  the  court  would,  in 
effect,  hold  that  a  single  presiding  officer  might,  by  his  signa- 
ture, give  the  force  of  law  to  a  bill  which  the  journal  of  the 
body  over  which  he  presides  and  which  was  kept  under  the 
supervision  of  the  whole  body  showed  not  to  have  been  voted 
for  by  the  constitutional  number  of  members."  The  court  con- 
cluded that  "  the  plain  provisions  of  the  constitution  are  not 
to  be  thus  nullified,  and  the  evidence  which  it  requires  to  be 
kept  under  the  supervision  of  the  collective  body  must  control 
when  a  question  arises  as  to  the  due  passage  of  a  bill."  ^ 

§  43.  The  courts  have  been  exceedingly  conservative  in  their 
researches  involving  the  validity  of  statutes  having  a  regular 
record  or  authentication ;  they  have  not  opened  the  door  to 
all  kinds  of  evidence  nor  freely  consulted  all  sources  of  in- 
formation. They  have  given  great  weight  to  such  authentica- 
tion ;  u-rcgularity  by  departing  from  a  practice  laid  down  by 
the  constitution  is  not  readily  inferred,  where  written  evi- 
dence should  exist,  in  the  absence  of  proof  of  that  nature. 

The  intention  of  constitutional  provisions  that  they  should 
operate  as  conditions,  or  be  treated  as  mandatory,  is  inferred 
largely  from  the  accompanying  requirement  that  legislative 
journals  be  kept,  preserved  and  given  publicity  by  publication, 
and  that  certain  steps  in  the  process  of  legislation  be  therein 

120  Ohio  St  1.  Ottowa   v.  Perkins,  94    U.   S.   260; 

'-'  Berliner  v.  Town  of  W.  14  Wis.  Osburn  v.  Staley,  5  W.  Va.  86 ;  Berry 

878 ;  Bound  7.  R  R  Co.  45  Wis.  543 ;  v.  Baltimore,  etc.   R.  R  Co.  41  :M(i 

Meracle  v.  Down,  64  Wis.  323 ;  South  440 ;  Legg  v.  Mayor,  etc  42  MA  203. 


4b  THE    LEGISLATURE,  ETC. 

recorded.^  The  parliamentary  history  of  any  act  in  question  in 
the  legislative  journals  and  files  is  the  only  evidence  which 
the  cases  generally  recognize,^  though  some  cases  intimate 
that  other  evidence  may  be  considered.^  Parol  evidence  of 
the  action  of  the  two  houses  is  excluded.* 

§  44.  The  journals,  by  being  required  by  the  constitution 
or  laws,  are  records.  At  common  law  the  legislative  journals 
were  not  strictly  records;  while  admissible  in  evidence  for 
certain  purposes  as  official  memorials  or  remembrances,  they 
were  not  admissible  to  show  that  an  act  of  parhament  had  not 
been  passed  according  to  its  own  rules.*  But  when  required, 
as  is  extensively  the  case  in  this  country,  by  a  paramount  law, 
for  the  obvious  purpose  of  showing  how  the  mandatory  pro  ■ 
visions  of  that  law  have  been  followed  in  the  methods  and 
forms  of  legislation,  they  are  thus  made  records  in  dignity, 
and  are  of  great  importance.^  The  legislative  acts  regularly 
authenticated  are  also  records ;  the  acts  passed,  duly  authenti- 
cated, and  such  journals  are  parallel  records,  but  the  latter  are 
superior  when  explicit  and  conflicting  with  the  other,  for  the 
acts  authenticated  speak  decisively  only  when  the  journals  are 
silent,  and  not  even  then  as  to  particulars  required  to  be  en- 
tered therein. 

In  Gardner  v.  The  Collector,^  Mr.  Justice  MiUer,  speaking 
for  the  whole  court  on  the  question  of  proving  the  date  of  the 
president's  approval  of  a  bill,  laid  down  this  general  rule :  that 
"  on  principle  as  weU  as  authority,  whenever  a  question  arises 

lOsbum  V.  Staley,    5  W.   Va.  80;  115;  Gaines  v.  Harrigan,  4  Lea,  608; 

People  V.   Mahaney,   13  Mich.   481 ;  Perry  County  v.  R.  R.  Co.  58  Ala. 

Spangler  v.  Jacoby,  14  III  297 ;  State  546 ;  Jones  v.  Hutchinson,  43  id.  721 ; 

T.  Buckley,  54    Ala.   599;    Jones  v.  Stein  v.  Leeper,  78  icL  517;  Spangler  v. 

Hutchinson,  43  id.  721.  Jacoby,  14  111.  297 ;  S.  C.  58  Am.  Dec. 

-•  Moog  V.  Randolph,   77  Ala.  597 ;  571. 

Osburn  v.  Staley,  5  W.  Va  86 ;  Hap-  3  state  v.  Piatt,  2  S.  C.  150 ;  S.  C.  16 

pel  V.  Brethauer,  70  111.  166 ;  Wise  v.  Am.  R.  647. 

Bigger,  79  Va.  269 ;  State  v.  McLelland,  .  ^  Berry  v.  Baltimore,  etc.  R.  R  Co. 

18  Neb.  236 ;  Board  of  Supervisors  v.  41  Md.  446 ;  Wise  v.  Bigger,  79  Va, 

Heenan,  2  Minn.  330 ;  People  v.  Ma-  269. 

haney,   13    Mich.    481;    Webster  v.  5  King  v.  Arundel,  Hob.  110. 

Little  Rock,  44  Ark.  536 ;    Smithee  ^  Opinion  of  Justices,  35  N.  H.  579 ; 

V.    Campbell,   41    id.   471 ;   Weill    v.  52  id.  622 ;    Wise  v.  Bigger,   79  Va. 

Kenfield,  54  Cal.  Ill ;  State  v.  Fran-  269 ;  State  v.  SmaUs,  11  S.  C.  262. 

cis,  26  Kans.  724;  Williams  v.  State,  '6  Wa^  499,  511. 
6  Lea,  549 ;  Moody  v.  State,  48  Ala 


THE    LEGISLATURE,  ETC.  47 

in  a  court  of  law  of  the  existence  of  a  statute,  or  of  the  time 
when  a  statute  took  effect,  or  of  the  precise  terms  of  a  statute, 
the  judges  who  are  called  upon  to  decide  it  have  a  right  to  re- 
sort to  any  source  of  information  which  in  its  nature  is  capable 
of  conveying  to  the  judicial  mind  a  clear  and  satisfactory  an- 
swer to  such  question;  always  seeking  first  for  that  which  in 
its  nature  is  most  appropriate,  unless  the  positive  law  has 
enacted  a  different  rule." 

§  4:5.  A  statute  will  not  be  declared  void  for  having  been 
enacted  in  violation  of  provisions  of  the  constitutions  relating 
to  procedure  on  the  admissions  of  parties  in  pleadings  or  other- 
wise, but  only  on  facts  being  ascertained  from  proper  evi- 
dence.' When  it  clearly  appears  by  the  journals  and  legislative 
files  that  any  required  proceeding  was  omitted ;  as  when  one 
of  the  prescribed  readings  did  not  take  place,  or  was  by  title, 
when  required  by  sections  or  at  length ;  -  or  when  it  appears 
that  the  bill,  passed  by  one  branch  of  the  legislature,  was  in 
materially  differei  t  terms  from  the  bill  passed  by  the  other 
branch,  or  when  one  branch  wholly  failed  to  pass  it ;  ^  or  when 
the  bill  approved  by  the  governor  and  authenticated  as  the 
law  requires  is  materially  different  from  the  bill  passed  by 
the  two  houses,*  it  will  be  held  a  nullity. 

§  46.  Presumption  in  favor  of  validity  of  statutes. — When 
an  act  is  found  lodged  in  the  office  of  the  secretary  of  state, 
with  the  public  acts  passed  at  the  same  session,  signed  by 
the  presiding  officers,  approved  and  signed  by  the  governor, 
and  it  is  published  by  authority  as  one  of  the  public  statutes 
of  the  state,  or  is  otherwise  authenticated  according  to  law, 
and  in  proper  custody,  the  presumption  is  that  it  was  regularly 

J  Happel  V.  Brethauer,  70  IlL  166 ;  Wolf,  62  111.  253 :  Opinions  of  Justices, 

Legg  V.  Mayor,  etc.  42  Md.  203.  35  N.  H.  579 ;  52  id.  622. 

2  Ryan  V.  Lynch,  68  IlL  160;  Super-  ••Moog  v.  Randolph,  77  Ala.  597; 
visors  V.  Heenan,  2  Minn.  330 ;  Weill  v.  Moody  v.  State,  48  id.  115 ;  S.  C.  17 
Kenfield,  54  C>aL  111;  People  v.  Loe-  Am.  R  28;  Jones  v.  Hutchinson,  43 
wenthal.  93  111.  191 ;  State  v.  Hagood,  Ala.  721 ;  Sayre  v.  Pollard,  77  id.  608; 
13  S.  C.  46.  See  Count}-  of  San  Mateo  Stein  v,  Leeper,  78  id.  517;  Legg  v. 
V.  R  R  Co.  8  Am.  &  E.  R  R  Cas.  1 ;  Mayor,  etc.  42  :Md.  203 :  State  v. 
S.  C.  13  Fed.  Rep.  722.  Liedtke,  9  Neb.  462 ;  Beny  v.  Balti- 

3  Bound  V.  R  R  Co.  45  Wis.  543;  more,  etc.  R  R  Co.  41  Md.  446;  S.  C. 
Jleracle  v.  Down,  64  id.  323 ;  Wise  20  Am.  R.  69 ;  State  v.  Piatt.  2  S.  C. 
V.  Bigger,  79  Va  269 ;   People  v.  De  150 ;  S.  C.  16  Am.  R  647 ;   State  v. 

Hagood,  13  S.  C.  46. 


48  THE    LEGISLATURE,  ETC. 


passed,  unless  tliere  is  evidence  of  which  the  courts  take 
judicial  notice  showing  the  contrary.^  The  journals  are  records, 
and  in  all  respects  touching  proceedings  under  the  mandatory 
provisions  of  the  constitution  wiU  be  effectual  to  impeach  and 
avoid  the  acts  recorded  as  laws  and  duly  authenticated,  if  the 
journals  affirmatively  show  that  these  provisions  have  been 
disregarded.  In  the  absence  of  such  an  affirmative  showing, 
and  even  in  cases  of  doubt,  it  will  be  presumed  that  a  quorum 
was  present;  that  the  necessary  readings  occurred ;2  that 
amendments  made  by  one  branch,  though  extensive,  were  ger- 
mane ;  ^  that  they  were  concurred  in  by  the  other  branch, 
though  the  journals  may  be  silent.* 

§  47.  As  all  particulars  of  compliance  with  the  constitution 
are  not  specially  required  to  be  entered  on  the  journals,  such 
compliance  will  be  presumed  in  the  absence  of  proof  to  the 
contrary ;  the  silence  of  the  journals  will  not  be  accepted  as 
proof  that  a  proceeding  required  and  not  found  recorded  was 
omitted,  even  though  it  be  a  proceeding  required  in  the  two 
houses,  and  such  as  would  appear  in  the  journals  if  it  occurred 
and  they  contained  a  memorial  of  all  that  was  done.'  The 
presumjDtion  of  regularity  is  exemplified  also  in  cases  where 
notice  is  required  to  be  published  before  application  to  the 
legislature  for  certain  private  or  local  legislation.  In  the 
absence  of  any  entry  in  the  journals  showing  such  previous 
notice  or  alluding  to  it,  it  will  be  presumed  in  favor  of  the 
law,  that  such  notice  was  given,  and  that  the  legislature  ex- 
acted proof  of  it.®    The  legislature  need  not  express  on  the 

iSee2X)sf,§  52;  Opinions  of  Justices,  SMcCulloch  v.  State,  11  Ind.  424; 

35  N.  H.  579 ;  52  id.  622 ;   Lamson  v.  Supervisoi-s    v.   People,   25   IIL   181 ; 

R.  R.  Co.  77  111.  11 ;  State  v.  Francis,  Miller  v.  State,  3  Ohio  St  475. 

26  Kan,  724 ;  State  v.  McLelland,  18  '  Miller    v.  State,  supra;  Pack  v. 

Neb.  236 ;  People  v.  Briggs,  50  N.  Y.  Barton,  47  Mich.  520. 

558 ;  Williams  v.  State,  6  Lea,  549 ;  *  State  v.  Hastings,  24  Minn.   78 ; 

State  V.  IMcConnell,  C  id.  332 ;  MiUer  Walker  v.  Griffith,  60  Ala  361 ;  Bless- 

V.  State,  3  Ohio  St  475 ;  Supervisors  ing  v.  Galveston,  42  Tex.  641 ;  Miller  v. 

V.  People,  25  III  181 ;  Perry  County  v.  State,  8  Ohio  St  475 ;  Vmsant  v.  Knox, 

R  R  Co.  58  Ala.  546 ;  Bound  v.  R  R  27  Ark.  279 ;  English  v.  OUver,  28  id. 

Ca  45  Wis.  543 ;  Harrison  v.  Gordy,  317 ;  Usener  v.  State,  8  Tex.  App.  177 ; 

57  Ala,  49 ;  People  v.  Loewenthal,  93  Worthen   v.   Padgett  32  Ark.  616 ; 

lU.   191 ;  Speer  v.  Plank  R  Co.   22  Supervisors  v.  People,  25  HI.  181. 

Pa.  St  376;  Wise  v.  Bigger,  79  Va.  »Id. 

269.  « Walker  v.  Griffith.  60  Ala.  361: 


THE    LEGISLATURE,  ETC. 


49 


Journals  the  cause,  or  the  facts  constituting  the  occasion  or 
urgency,  for  dispensing  with  the  rule  requiring  three  readings 
on  different  days  when  it  has  power  to  dispense  with  it.^ 

§  48.  If  the  constitution,  however,  requires  a  certain  pro- 
ceeding in  the  process  of  legislation  to  be  entered  in  the  jour- 
nals, the  entry  is  a  condition  on  whicli  the  validity  of  the  act 
will  depend.  The  vital  fact  that  on  the  final  passage  of  a  bill 
the  required  number  of  votes  are  given  in  its  favor  is  exten- 
sively directed  by  constitutions  to  be  entered  on  the  journals. 
Under  the  operation  of  these  provisions,  there  is  no  presump- 
tion that  the  required  vote  was  given  if  the  journal  is  silent. 
It  must  affirmatively  appear  by  the  journals  that  this  constitu- 
tional requirement  has  been  comphed  with.- 


Harrison  v.  Gordy,  57  id.  49;  Mc- 
Kemie  v.  Gorman,  68  id.  442 ;  Brod- 
nax  V.  Groom,  64  N.  C.  244 ;  Speer  v. 
Mayor,  etc.  42  Alb.  L.  J.  232  (Ga.). 

i  HuU  V.  IMiUer,  4  Neb.  503. 

2  State  V.  Buckley,  54  Ala.  599; 
State  V.  Francis,  26  Kan.  724 ;  In  re 
Vanderberg,  28  id.  243;  AVeyand  v. 
Stover,  35  id.  545;  South  Ottawa 
V.  Perkins,  94  U.  S.  260;  People  v. 
Mahauey,  13  Mich.  481 ;  Spangler  v. 
Jacoby,  14  111.  297 ;  People  v.  Starne, 
35  id.  121 ;  Ryan  v.  Lynch,  68  id.  160 ; 
Post  T.  Supervisors,  105  U.  S.  667; 
Osburn  v.  Staley,  5  W.  Va.  85 ;  Boul- 
din  v.  Lockliart,  1  Lea,  195. 

\Miere  it  appeared  upon  the  joiir- 
nals  of  the  house  of  representatives 
that  the  bill  did  not  receive  the  requi- 
site vote  on  its  third  reading  in  that 
body,  but  did  ujwn  its  final  passage 
by  the  house  after  its  retm-n  from  the 
senate  with  amendments,  it  was  held 
a  substantial  compliance.  Bond  Debt 
Cases,  12  S.  C.  200. 

In  Osburn  v.  Staley,  aiipra,  it  ap- 
peared that  the  full  senate  had  con- 
sisted of  tAventy-tAvo  members;  that 
one  afterwards  resigned.  On  the 
final  passage  of  the  bill  in  question, 
after  such  resignation,  there  -sAcre 
eleven  votes  in  its  favor,  and  it  was 
4 


declared  passed  and  by  a  majority  of 
the  members  elected.  Held,  that  there 
was  doubt  whether  the  vote  was  not 
sufficient,  and  the  act  was  sustained 
by  resolving  the  doubt  in  favor  of  its 
vahdit}'. 

In  State  v.  Francis,  supra,  the  act 
in  question  was  passed  in  the  house 
by  a  vote  in  its  favor,  including  to 
make  the  requu-ed  majority,  the  votes 
of  f  om'  members  (who  were  identified) 
beyond  the  maximum  membei-sliip 
fixed  by  the  constitution ;  held  void. 

Under  the  ]Micliigan  constitution, 
requiring  on  the  final  passage  of  a  bill 
a  majority  of  all  the  membei-s  elected, 
it  was  held  that  the  court  woidd  not 
enter  into  an  inqiiiiy  whether  cle 
facto  members  were  properly  electecL 
People  V.  Mahauey,  supra. 

In  Tiu-ley  v.  Coimt^-  of  Logan,  1 7 
HI.  153,  it  was  said  by  the  comi;  that 
"while  the  absence  of  facts  in  tJie 
joruTials  may  rebut  the  presumption 
raised  by  the  signatures  of  the  proper 
officers,  and  the  publication  of  tlie 
act  as  a  law,  stUl  we  cannot  doubt 
the  power  of  the  same  legislature,  at 
the  same  or  a  subsequent  session,  to 
correct  its  own  jomnals  by  amend- 
ments wliich  show  the  true  facts  as 
they  actually  occurred,   when  they 


50  THE    LEGISLATURE,  ETC. 

In  Miller  v.  State,^  Thurman,  C.  J.,  used  this  emphatic  lan^ 
guage :  '"  That  the  power  to  make  laws  is  vested  in  the  assem- 
bly alone,  and  that  no  act  has  any  force  that  was  not  passed 
by  the  number  of  votes  required  by  the  constitution,  are  nearly 
or  quite  self-evident  propositions.  These  essentials  relate  to 
the  authority  by  which,  rather  than  to  the  mode  in  which, 
laws  are  to  be  made." 

§  49.  Required  readings  of  bills. —  The  readings  required 
of  bills  are  intended  to  afford  opportunities  for  deliberate  con- 
sideration of  them  in  detail,  and  for  amendment.-  Hence, 
amendments  are  admissible  during  the  progress  of  a  bill 
through  the  process  of  enactment ;  they  are  not  subject  to  the 
same  rule  as  bills  in  regard  to  the  number  of  readings.  They 
must  be  germane  to  the  subject  of  the  bill,  and  are  not  re- 
quired to  be  read  three  tunes.*  Nor  does  concurrence  by  one 
house  in  amendments  made  by  the  other  require  the  yeas  and 
nays,  and  their  entry  on  the  journal,  under  the  provision  for 
these  things  on  the  final  passage  of  bills.* 

It  is  not  necessary  that  everything  which  is  to  become  law 
by  the  adoption  of  a  bill  be  read.  Thus  a  bUl  may  be  passed 
for  the  adoption  of  the  common  law,  and  it  would  not  be  nec- 
essary to  set  it  forth  in  the  bill.  An  act  was  held  valid  which 
provided  for  the  punishment  as  at  common  law  of  misdemean- 
ors for  which  no  punishment  was  provided  by  statute.^ 

The  requirement  that  bills  be  read  on  different  days  will  not 
prevent  one  house  from  reading  a  bUl  the  first  time  on  the 
same  day  it  was  read  the  third  time  and  passed  in  the  other 
house.^ 

§  50.  What  shall  be  sufficient  cause  for  suspending  the  rule 
requiring  the  readings  on  different  days  is  solely  within  the 
discretion  of  the  legislative  body  voting  it,  where  power  to 
dispense  with  it  is  given.'' 

are  satisfied  that  by  neglect  or  design  *  Hull  v.  ^Rliller,  4  Neb.  503. 

the  truth  has  been  omitted  or  sup-  ^  Dew  v.  Cunningham,  28  Ala.  471 : 

pressed."  Dane  v.  McArthur,  57  Ala.  454 ;  Peo- 

1  3  Ohio  St.  475.  pie  v.  Wliipple,  47    Cal.  593;  Bibb 

2  State  V.  Piatt,  2  S.  C.  150 ;  S.  C.  16  County  Loan  Asso.  v.  Richards,  21 
Am.  R.  647.  Ga  592. 

3  Miller  v.  State,  3  Oliio  St  475 ;  6  Chicot  Co.  v.  Davies,  40  Axk.  200 ; 
People  V.  Wallace,  70  IlL  680 ;  State  State  v.  Crawford,  35  id.  2«7. 

V.  Piatt,  mpra.  7  Hull  v.  Lliller,  4  Neb.  503. 


THE    LEGISLATUKE,  ETC. 


The  requirement  that  there  be  three  readings  and  that  they 
occur  on  three  different  days,  being  intended  to  prevent  hasty 
and  imprudent  legislation,  ought  on  principle  to  be,  and  by 
the  weight  of  authority  is,  regarded  as  mandatory.'  In  Ohio 
it  seems  to  be  regarded  as  direct ory.- 

§  51.  Necessity  of  signature  of  presiding  officers.— T7here 
the  constitution  requires  every  bill  passed  to  be  signed  by  the 
presiding  officers  of  the  respective  houses,  it  is  mandatory, 
and  cannot  be  dispensed  with  where  the  journals  are  not  rec- 
ords, and  the  act  when  passed  and  duly  authenticated  is  con- 
clusive as  a  record.  But  where  such  fact  is  required  to  be  en- 
tered on  the  journal  it  is  necessary  as  the  evidence  of  the  due 
passage  of  the  bill.''  If  the  constitution  does  not  require  their 
signing,  it  is  not  deemed  essential.''  And  since  it  is  no  part 
of  the  essential  process  of  legislation,  and  is  designed  solely 
to  verify  the  passage  of  the  bill  or  resolution,  where  the  legis- 
lative journals  and  files  are  records  of  which  the  court  takes 
judicial  notice,  or  which  may  be  brought  to  judicial  notice, 
and  fi'om  them  it  plainly  appears  that  the  bill  or  resolution, 
not  signed  by  one  or  both  of  the  presiding  officers,  was  regu- 
larly considered  and  passed,  there  is  much  reason  to  sustain 
it  as  valid  notwithstanding  the  absence  of  those  signatures. 
If  that  evidence  will  prevail  to  avoid  a  statute  erroneously 
signed  by  them,  it  should  suffice  to  sustain  one  which  was 
duly  passed,  though  lacking  that  particular  verification,  if  the 
other  record  evidence  sufficiently  shows  the  essential  proceed- 
ings.^ The  signature  of  the  presiding  officer  is  in  such  cases 
only  a  certificate  to  the  governor  that  the  bill  or  resolution 
has  passed  the  requisite  number  of  readings,  and  been  adopted 
by  the  constitutional  majority  of  the  house  over  which  he  pre- 
sides. But  where  the  vote  must  be  determined  by  the  jour- 
nals, the  absence  of  the  signatures  of  the  presiding  officers  is 
not  fatal,  if  the  governor  has  signed  the  bill,  for  it  wiU  be  pre- 

1  Ante,  §  45  ;  Cooley,  Const  L.  170.  *  Speer  v.  Plank  Road  Co.  22  Pa.  St 

miller  V.  State,  3  Oliio  St  481;  376. 

Pirn  V.  Nicholson,  6  id.  178,  s  Hull  v.  IMiUer,  4  Neb.  503 ;  Cot- 

'  People  V.  Commissioners,  54  N.  Y.  trell  v.  State,  9  Neb.  138 ;  Commis- 

276;  Pacific  R  R.  Co.  v.  The  Gov-  sioners    v.   Higginbotham,   17    Kan. 

eraor,  23  Mo.   364 ;   Cooley's  Const  75 ;  State  v.  Glenn,  18  Nev.  39 ;  Hous- 

Lim.  153 ;  Burrough,  Pub,  Securities,  ton,  etc.  R  R  Co.  v.  Odum,  53  Tex. 

425.  343. 


52  THE    LEGISLATURE,  ETC. 

sumed  that  tlie  governor  had  suflBcient  evidence,  the  assur- 
ance which  the  journals  afford  to  t'\e  court,  of  its  passage  at 
the  time  of  his  approval 

§  o2.  How  the  validity  of  statutes  is  tried. —  The  court 
takes  judicial  notice  of  all  general  laws.  This  is  a  cardinal 
rule,  and  necessarily  includes  cognizance  of  whatever  must  be 
considered  in  determining  what  the  law  is ;  not  because  it  is 
the  prerogative  of  the  courts  arbitrarily  to  determine  what 
are  the  pubhc  statutes,  nor  because  they  are  required  or  sup- 
posed to  have  a  knowledge  of  those  laws  without  evidence  of 
them,  but  because  they  have  the  means,  and  it  is  their  duty, 
to  make  themselves  acquainted  with  tliem.^  "Whatever  ex- 
trinsic facts  are  proper  to  be  considered,  the  courts  may  have 
recourse  to  to  aid  them  in  their  duty  to  ascertain  the  law.  Ju- 
dicial knowledge  takes  in  its  whole  range  and  scope  at  once  ; 
it  embraces  simultaneously,  in  contemplation  of  law,  all  the 
facts  to  which  it  extends.  It  would  be  a  solecism  to  hold 
that  a  statute  regularly  authenticated  is  jprima  facie  valid,  if 
there  exist  facts  of  which  the  court  must  take  judicial  notice 
showing  it  to  be  void. 

On  principle  and  the  weight  of  authority  the  courts  take  ju- 
dicial notice  of  the  legislative  journals.  If  they  invalidate  a 
statute  it  is  not  apparently  valid,  for  in  every  view  of  it  the  court 
perceives  what  impugns  it  and  prevents  its  having  force.  And 
if  the  court  has  other  sources  of  information  which  explored 
disclose  facts  fatal  to  an  act,  it  is  void  from  the  beginning,  void 
on  its  face ;  for  what  is  manifest  to  the  judicial  mind  is  legally 
palpable  to  the  whole  public,  ]Sione  can  plead  ignorance  of  it. 
It  is,  however,  held  in  some  of  the  states  that  the  courts  do 
not  take  such  judicial  notice  of  legislative  journals  and  extrin- 
sic facts.  In  Grob  v.  Cushman,-  the  court  say :  "  It  is  true 
that  they  are  public  records,  but  it  does  not  foUow  that  they 
are  to  be  regarded  as  within  the  knowledge  of  the  courts  like 
pubhc  laws.  Lil^e  other  records  and  public  documents  they 
should  be  brought  before  the  court  as  evidence.  But  when 
offered  they  prove  their  own  authenticity.  Until  so  produced 
they  cannot  be  regarded  by  the  courts."     It  is  held  in  that 

1  Eld  V.  Gorham,  20  Conn.  8.  Peoria,  etc.  R.  R.  Co.  77  id  18 ;  People 

2  45  III  124,  125 ;  lUinois  Cent.  R.  R     v,  De  Wolf,  63  ILL  253. 
Co.  V.  Wren,  43  IlL  77 ;  Larrison  v. 


THE    LEGISLATURE,  ETC.  0^ 

state  not  to  be  the  province  of  the  court,  at  the  suggestion  or 
request  of  counsel,  to  explore  the  journals  for  the  purpose  of 
ascertaining-  the  manner  in  which  a  law  duly  certified  went 
throuirh  tlie  legislature  and  into  tlic  liands  of  the  f^^overnor.' 

§  53.  These  cases  came  under  review  in  the  supreme  court 
of  the  United  States  in  Town  of  South  Ottawa  v.  Perkins,' 
and  that  court  was  in  doubt  and  divided  on  the  question 
whether  by  the  state  decision  the  validity  of  a  statute  was  a 
conclusion  of  law  or  fact,  when  the  statute,  properly  authenti- 
cated, is  avoided  by  the  legislative  journals  showing  it  was  not 
constitutionally  enacted.  The  majority,  by  Bradley,  J.,  say : 
"In  our  judgment  it  was  not  necessary  to  have  raised  an  issue 
on  the  subject,  except  by  demurrer  to  the  declaration.  The 
court  is  bound  to  know  the  law  without  taking  the  advice 
of  a  jury  on  the  subject.  When  once  it  became  a  settled  con- 
struction of  the  constitution  of  Illinois  that  no  act  can  be  deemed 
a  valid  law  unless  by  the  journals  of  the  legislature  it  appears 
to  have  been  regularly  passed  by  both  houses,  it  became  the 
duty  of  the  courts  to  take  judicial  notice  of  the  journal  entries 
in  that  regard.  The  courts  of  Illinois  may  decline  to  take 
that  trouble,  unless  the  parties  bring  the  matter  to  their  atten- 
tion ;  but  on  general  principles  the  question  as  to  the  existence 
of  a  law  is  a  judicial  one,  and  must  be  so  regarded  by  the 
courts  of  the  United  States."  ^ 

§  54.  The  investigation  upon  an  objection  that  an  act  was 
unconstitutionally  passed  may  be  expected  to  be  made  primar- 
ily by  the  parties ;  they  will  desii'e  to  be  heard  in  respect  to 
the  source  and  the  evidentiary  quality  of  information  obtained, 
and  the  effect  of  facts  considered.  Doubtless  this  interest  of 
the  parties,  and  a  conservatism  of  the  courts  restraining  them 
from  a  consideration  of  any  important  ingredient  of  a  case 
without  notice  to  the  parties,  and  the  aid  of  their  counsel,  have 
induced  the  course  of  decision  in  Illinois  and  in  some  other 
states  in  which  it  is  held  that  the  courts  will  not  take  judicial 
notice  of  the  legislative  journals,  though  they  are  requu-ed  by 
the  constitution  to  be  kept,  and  will  be  considered  only  when 
brouo-ht  before  the  court  as  evidence.^    It  has  been  intimated 

o 

1  Illinois  Cent  R.  R.  Co.  v.  Wren,  3  Post  v.  Supervisors,  105  U.  S.  667. 
supra.  *  Biut  v.  Winona,  etc.  R  R.  Co.  31 

2  94  XJ.  S.  200.  Minn.  472 ;  S.  C.  -4  Ain.  &  Eng.  Corpi 


54  THE    LEGISLATURE,  ETC. 

in  some  cases  tliat  the  objection  should  be  made  by  plea,' 
which  implies  that  the  validity  may  be  made  to  depend  on 
the  determination  of  an  issue  of  fact.  But  this  notion  has 
been  abandoned  in  the  court  in  which  it  originated,  and  never 
obtained  a  footing  in  any  other  jurisdiction.-  The  court  is  re- 
quired to  take  notice  ex  ojjicio  of  general  laws ;  its  peculiar 
function  is  to  determine  what  the  law  is,  and  expound  it; 
therefore  it  would  be  at  once  absurd  and  inconvenient  to  submit 
such  a  question  to  a  jury.  It  is  more  logical  and  more  con- 
sistent with  principle  to  treat  the  evidence,  so  called,  produced 
upon  such  an  objection  as  being  presented  for  the  information 
of  the  court  in  the  same  sense  in  which  law-books  are  read ; 
facts  are  only  incidental  to  the  research,  as  when  a  court  must 
deal  with  them  to  some  extent,  to  learn  if  authorities  cited 
are  authentic.  In  Gardner  v.  The  Collector,^  Miller,  J.,  said 
of  the  public  statute  in  question :  "  It  is  one  of  which  the 
court  takes  judicial  notice,  without  proof,  and  therefore  the 
use  of  the  words  '  extrinsic  evidence '  is  inappropriate.  Such 
statutes  are  not  proved  as  issues  of  fact  as  private  statutes 
are." 

§  55.  When  acts  sliould  be  approved. —  The  legislative 
power  is  generally  in  terms  vested  by  the  organic  law  in  the 
legislature  or  general  assembly  consisting  of  two  branches ; 
though  in  acts  of  congress  organizing  territorial  governments 
it  has  been  usual  to  vest  it  in  the  governor  and  general  assem- 
bly. He  is  thus  made  a  constituent  of  the  legislature,  as  the 
king  in  the  English  system  is  a  constituent  of  parliament.  The 
legislative  practice,  however,  is  the  same  in  the  territories  as 
in  the  states,  and  the  same  as  in  parliament,  as  to  the  part 
taken  by  the  executive  in  the  enactment  of  laws.  The  two 
houses  formulate  and  adopt  in  the  first  instance  all  legislative 
measures,  and  the  executive  acts  merely  to  approve  or  dis- 
approve these  measures.  His  function  is  of  the  same  nature 
as  that  of  members  of  the  two  houses,  except  that  it  is  nega- 
tive, and  that  by  pursuing  the  course  prescribed  in  the  para- 

Cas.  426;    Ballou  v.  Black,  17  Neb.  People   v.  Commissioners,  54  N.  Y. 

389.  276 ;  State  ex  reL  v.  Foote,  11  Wis. 

1  People  Y.  Supervisors,  8  N.  Y.  317 ;  11. 
Falconer  v.  Campbell,  2  ]\IcLean,  195.  » 6  WalL  50a 

2  People    V.   Devlin,  33  N.  Y.  269; 


THE    LEGISLATURE,  ETC. 


55 


mount  law  acts  may  acquire  the  force  of  laws  without  his 


concurrence. 


1  In  People  v.  Bowen,  21  N.  Y.  520 
et  seq.  (S.  C.  30  Barb.  24),  Denio,  J., 
thus  discusses  the  nature  of  the  duty 
and  power  of  the  executive  in  the  en- 
actment of  laws :  "  The  question  as 
to  the  nature  of  the  governor's  agency 
raises,  I  think,  rather  a  dispute  about 
terms  than  one  concerning  the  sub- 
sUmce  of  tilings.  Whatever  the  au- 
thority touching  the  enactment  of 
laws,  with  wliich  the  governor  is 
clothed,  shall  be  called,  it  is  of  the 
same  general  nature  with  that  which 
is  exercised  by  the  members  of  the 
two  houses.  He  is  to  consider  as  to 
the  constitutionaUtj-,  justice  and  pub- 
lic expediency  of  such  legislative 
measures  as  shall  have  been  agreed 
upon  by  the  two  houses,  by  the  ordi- 
nary majorities,  and  be  presented  to 
him ;  and  he  is  to  accord  or  witlihold 
liis  approbation  according  to  the  re- 
sult of  liis  dehberations.  This  is 
plainly  the  fimction  of  a  legislator. 
The  sovereign  of  England,  who  is 
charged  with  the  same  duty  in  respect 
to  acts  of  parhament,  is  considered 
to  be  a  constituent  part  of  the  su- 
preme legislative  power.  1  BL  Com. 
261.  It  is  true  that  his  determination 
to  disapprove  a  bill  de^jrives  it  of  any 
effect,  whUe  one  disallowed  by  the 
governor  may  yet  be  established  by 
an  extraordinary  concurrence  of 
votes  in  the  houses.  Thus,  though 
the  action  of  the  executive  is  less  po- 
tential here  tlian  in  England,  the 
quality  of  the  act,  namely,  deliberat- 
ing and  determining  upon  the  pro- 
priety of  laws  proposed  to  be  enacted, 
is  precisely  the  same.  Besides  mak- 
mg  his  determination  the  governor  is 
required,  in  case  it  is  unfavorable  to 
the  law,  to  submit  his  objections  to 
the  legislature  wliich  is  to  examine 
them,  and  again  pass  upon  them  in 


the  light  of  the  discussion  which  they 
have  thus  undergfjne.  To  my  mind 
it  is  clear  that  this  involves  a  partici- 
pation on  the  part  of  the  governor 
with  the  two  houses  of  the  legislature 
in  the  enactment  of  laws.  It  would 
not  be  correct  language  to  say  that 
he  forms  a  branch  of  the  legislature, 
for  the  constitution  has  limited  that 
designation  to  the  senate  and  assem- 
bly ;  but  it  would  be  equally  incorrect 
to  allii'm  that  the  sanction  which  he 
is  required  to  give  to  or  withhold 
from  bills  before  they  can  become 
operative  does  not  render  him  a  par- 
ticipator in  the  function  of  making 
laws.  The  foity-seventh  number  of 
'  The  Federalist,'  AATitteu  by  ]Mr. 
Madison,  ti'eats  of  the  separation  of 
the  great  departments  of  the  govern- 
ment, and  it  is  there  shown  that  the 
concmrence  of  the  executive  magis- 
ti'ate  with  the  jnoper  legislatm^e  in 
the  enactment  of  laws  as  arranged  in 
the  constitution  of  the  United  States 
is  not,  in  spuit,  a  violation  of  the 
principle,  so  strongly  insisted  upon 
by  Montesquieu  and  other  writers 
upon  constitutional  government,  that 
constitutional  hberty  cannot  exist 
where  the  legislative  and  executive 
powei^s  are  united  in  the  same  per- 
son. Mr.  IMadison  considers  the  quali- 
fied veto  accorded  to  the  president  as 
effecting  a  partial  distribution  of  the 
legislative  authority  between  him  and 
the  congress,  but  argues  that  it  is  not 
objectionable,  because  neither  author- 
ity can,  in  any  case,  exercise  the 
whole  power  of  the  other.  He  shows, 
also,  that  in  certain  states,  in  the  con- 
stitutions of  which  the  principle  of 
Montesquieu  is  laid  down  in  terms 
with  gi'eat  positiveness,  there  is  an 
intermingling  of  the  legislative  and 
executive  departments  in  the  actual 


56 


THE    LEGISLATCTRE,  ETC. 


In  Xew  York  it  is  held  that  after  the  final  adjournment  of 
the  legislature  the  governor  may  act  upon  bills  submitted  to 
him.^  Such  seems  to  have  been  the  practice  sanctioned  by  ju- 
dicial decision  under  similar  constitutional  provisions  in  Geor- 
gia,'- lUinois '  and  Louisiana.'' 


arrangemeut  of  the  details  of  govern- 
ment Our  own  constitution  fur- 
nishes another  example ;  for  though 
it  is  declared  that  the  whole  legisla- 
tive authority  shall  be  vested  in  the 
senate  and  assembly ;  still  no  law  can 
be  enacted  which  has  not  been  sub- 
mitted to  the  judgment  of  the  gov- 
ernor. His  agency  cannot,  therefore, 
be  considered  as  merely  a  power  to 
refer  back  bills  for  further  considera- 
tion by  the  legislatm-e.  His  approval 
is  regarded  as  generally  essential  to 
tlie  enactment  of  laws,  though  his 
disapproval  is  not  necessarily  fatal  to 
them,  but  may  be  overcome,  where 
the  legislature,  upon  a  consideration 
of  his  objections,  shall  repass  them  by 
an  extraordinary  majority." 

1  Id.  Denio,  J.,  contmuing  the 
opinion  from  which  we  quoted  in  the 
last  note,  said  that,  m  his  opinion,  "  it 
is  not  a  just  consti'uction  of  the 
power  inti'usted  to  the  governor  to 
consider  it  as  merely  an  authority  to 
require  a  further  consideration  of 
bills  which  he  shall  disapprove.  In 
one  respect  the  effect  of  the  govern- 
or's determination  is  different  when 
the  legislature  is  in  session  and  when 
it  is  not  In  the  latter  case,  if  he  ap- 
proves, the  concm'rence  of  the  whole 
law-making  power  is  secured,  pre- 
cisely as  though  the  legislatui-e  was 
in  session.  The  bill  has  received  the 
concui'rence  of  all  the  fimctionaries 
wliich  the  constitution  requires  shall 
unite  in  enacting  a  perfect  law.  He 
cannot  state  ol)jections,  for  there  is 
no  puijhc  body  ui  existence  to  whom 
they  can  be  submittecL  If  he  neglect 
to  act,  wliich  he  wiU  of  course  do  if 


the  bill  is  disapproved  of  by  liim,  it 
falls  to  the  ground  by  the  express 
provisions  of  the  constitution,  for  the 
grounds  of  his  disapproval  cannot  be 
passed  upon  by  the  legislatm-e.  But 
if  the  proposed  law  meets  with  liis 
approval,  tliei'e  is  no  reason  why  the 
pubhc  will,  expressed  by  aU  the  offi- 
cial bodies  and  persons  with  whom 
the  constitution  has  inti-usted  the 
province  of  making  laws,  should  fail 
of  effect 

"  It  has  been  argued  that  as  the 
governor  cannot,  in  the  recess  of  the 
legislature,  compel  the  reconsidera- 
tion of  bUls  to  which  he  is  unwilling 
to  yield  his  consent,  he  might  be  in- 
duced to  approve  those  which  are, 
in  some  respects,  objectionable,  but 
which  contain  other  provisions  im- 
portant to  the  pubhc  wehare.  This 
argument  is  not  without  force,  but  I 
think  it  should  be  assumed  that  he 
would  never  interpose  a  veto  to  a  bill 
which  he  did  not  conscientiously  be- 
lieve ought  not  to  become  a  law,  and 
that  he  would  never  approve  one  to 
wliich  such  objection,  in  his  opinion, 
existed.  Should  a  bih  of  the  charac- 
ter suggested  be  left  in  liis  hands  at 
the  adjournment,  the  remedy  for  the 
pubhc  inconvenience,  which  might 
be  occasioned  by  the  failure  to  enact 
the  soimd  parts,  would  be  found  in 
the  power  to  again  caU  the  legislature 
together,  which  is  vested  in  him  for 
this  and  the  like  occasions." 

2  Solomon  v.  Commissioners,  41  Ga» 
157. 

3  Const  1848,  art.  4,  §21;  Seven 
Hickory  v.  Ellery,  103  U.  S.  423. 

*  State  v.  Fagan,  22  La.  Amu  545. 


THE    LEGISLATURE,  ETC.  57 

§  56.  The  organic  act  of  Nevada  territory  vested  the  legis- 
lative power  in  the  governor  and  legislative  asseraljly.  It  was 
therefore  held  that,  being  a  part  of  the  legislative  body,  he 
could  only  concur  in  the  passage  of  a  law  Avhilst  the  other 
branches  had  a  legal  existence.'  The  signing  of  a  bill  by  the 
governor  is  the  mode  appointed  in  the  constitutions  for  him  to 
signl.'y  his  approval.  AVhen  he  has  signed  it  it  will  become  a 
law  though  he  send  a  message  to  the  legislature,  or  the  house 
in  which  it  originated,  setting  forth  ol)jections  to  it.^  So  it 
has  been  held  that  after  a  bill  has  been  regularly  passed  by  the 
two  houses,  and  has  been  presented  to  the  governor  for  ap- 
proval, it  cannot  be  recalled  by  their  joint  resolution.'^  The 
schedule  of  the  Kansas  constitution  provides  that  all  officers 
under  the  territorial  government  should  continue  in  the  exer- 
cise of  the  duties  of  their  respective  departments  until  super- 
seded under  the  authority  of  the  constitution.  Under  this 
provision  it  was  held  that  the  territorial  governor  properly 
approved  an  act  after  the  act  of  admission  had  passed.^ 

§  57.  How  a  bill  will  become  a  law  without  approval.— 
Without  the  express  approval  of  the  executive  a  bill  passed  by 
the  leo-islature  can  become  a  law  onlv  in  two  cases.  First, 
when  he  fails  to  return  it  with  his  objections  within  the  time 
prescribed  by  the  constitution ;  second,  when  it  is  passed  over 
his  objections  by  the  required  vote.'^  Many  constitutions  pro- 
vide that  an  act  shall  become  a  law  without  the  governor's 
signature  if  he  retain  it  for  a  certain  number  of  davs  after  it 
is  presented  to  him  for  approval,*^  unless  the  adjournment  of 
the  legislature  shall  prevent  him  from  returning  it  within  that 
time,  and  in  that  case  that  it  shall  not  become  a  law.  The 
adjournment  intended  by  this  provision  is  the  final  adjourn- 
ment, not  adjournments  from  time  to  time.^  Where  Sundays 
are  excepted  in  the  specification  of  the  period ;  and  under  the  pro- 
vision sometimes  added, that  "the  governor  may  approve,  sign 
and  file  in  the  office  of  the  secretar3"of  state  within  tiiree  days 
after  the  adjourment  of  the  legislature,  any  act  passed  during 

1  School  Trustees  v.  Commissioners,  <  State  v.  Hitchcock,  1  Kan.  186. 
1  Nev.  335 ;  Birdsall  v.  Carrick,  3  » Birdsall  v.  CaiTick.  3  Nev.  154. 
Nev.  154.  ^ilcNeil     t.     Commonwealth,    13 

2  State  V.  Wliisner,  35  Kan.  271.  Bush,  727. 

» Wolfe  V.  McCaull,  76  Va.  876.  'Miller  v.  Hurford,  11  Neb.  377. 


58  THE    LEGISLATURE,  ETC. 

the  last  three  days  of  the  session,  and  the  same  shall  become 
a  law,"  Sunda^^s  will  be  excepted  by  construction,  as  intended 
by  the  constitution,  in  order  to  give  the  governor  three  fuU 
working  days  after  the  adjournment.  Such  time  being  ex- 
pressly granted  in  the  limitation  of  time  during  the  session,  it 
is  deemed  not  unreasonable  to  hold  that  there  is  imphed  the 
same  exception  of  Sundays  in  the  period  given  after  the  ad- 
journment, for  there  is  the  same  and  stronger  reason  for  it  in 
the  greater  number  of  important  bills  usually  passed  during 
the  last  days  of  a  session. ^ 

§  58.  This  provision  is  made  in  Iowa  for  biUs  passed  during 
the  last  three  days  of  a  session:  that  they  "  shall  be  deposited 
by  him  [the  governor]  in  the  office  of  the  secretary  of  state 
within  thirty  days  after  the  adjournment,  with  his  approval, 
if  approved  by  him,  and  with  his  objections,  if  he  disapproves 
thereof."  In  a  case  in  which  the  bill  was  presented  to  the 
governor  during  the  last  three  days  of  the  session,  and  he 
omitted  to  sign  it,  but  within  the  thirty  days  filed  it  without 
objections  with  the  secretary  of  state,  it  was  held  that  it  did 
not  become  a  law  —  it  could  only  become  a  law  by  his  subse- 
quent approval  of  it.- 

§  59.  When  a  bill  has  been  presented  to  the  executive  for 
his  approval  his  responsibility  commences,  and  the  tune  speci- 
fied in  the  constitution  for  his  action  is  important  and  man- 
datory, for  precise  consequences  of  his  action  or  non-action 
are  defined.  It  must  be  presented  to  him  during  the  session 
of  the  legislature,  and  he  can  only  return  it  with  objections 
when  the  body  is  in  session  to  which  the  return  must  be  made. 
If  the  session  is  ended  or  interrupted  by  adjournment ;  if  the 
members  have  dispersed,  and  the  officers  are  not  in  attend- 
ance, he  cannot  return  it  to  the  house  in  which  it  originated. 
He  is  not  authorized  to  return  a  bill  to  the  speaker  of  the 
house,  to  the  clerk,  or  to  any  other  officer,  but  only  to  the 
house  in  which  it  originated,  and  that  can  only  be  as  a  body.* 
The  return  of  a  bill  by  laying  it  on  the  speaker's  table  and 
the  announcement  of  a  message  from  the  governor,  before  the 
adjournment  of  the  house,  is  a  sufficient  return  of  it,  though 

J  Stinson  v.  Smith,  8  Minn.  366.  3  People  v.  Hatch,  33  IlL  9,  135. 

2  Darling  v.  Boesch,  25  N.  W.  Eep. 
887 ;  S.  C.  67  Iowa,  702. 


THE    LEGISLATURE,  ETC. 


69 


the  house  was  at  the  time  taking  a  vote  by  ayes  and  noes  on 
a  motion  to  adjourn,  which  Avas  carried.^ 

The  computation  of  the  time  for  different  purposes,  both 
for  executive  action  on  bills  2)resented  for  approval  and  in 
determining  when  acts  take  effect,  is  a  subject  of  considerable 
interest.  The  discussion  of  it  will  be  deferred  until  the  latter 
topic  is  reached.' 


1  Opinion  of  Justices,  45  N.  H.  608. 
As  to  what  shall  be  regarded  as  a  re- 
turn, and  what  should  be  considered 
as  a  day  in  this  connection,  the  jus- 
tices in  this  opinion  say :  "  Nor  are 
we  by  any  means  prepared  to  say 
that  the  legislative  day  was  ended 
necessaiily  by  the  adjoiminient  of  the 
house,  even  though  it  might  have 
been  at  the  usual  hour  in  the  after- 
noon ;  or  that  the  retium  of  the  bill 
at  any  convenient  time  during  the 
day  to  the  speaker,  although  after  the 
house  adjoiu-ned  for  the  day,  would 
not  have  been  sufficient  Tlie  provis- 
ion of  the  constitution  in  relation  to 
this  subject  should  receive  a  reason- 
able constiTiction ;  and  it  can  hardly 
be  supposed  that  the  time  Limited  for 
the  retiu-n  of  the  bill  has  expired  be- 
cause that  branch  of  the  legislatiu*e 
in  which  the  bill  originated  has  ad- 
jom-ned  for  the  day,  if  the  five  days 
limited  by  the  constitution  have  not 
expired.  The  word  "  day,"  in  its  com- 
mon acceptation,  means  a  civil  day 


of  to'enty-four  hours,  beginning  and 
ending  at  midnight."  Shaw  v.  Dodge, 
5  N.  H.  465 ;  Colby  v.  Knapp,  13  id.  175. 
Tliis  opinion  answers  the  question 
whether  the  biU  was  profierly  pre- 
sented to  the  governor.  It  was  left  in 
the  executive  office  in  the  governor's 
absence,  and  it  came  to  liis  notice  on 
the  following  day.  It  is  supposed  that 
custom  and  habit  have  designated 
where  the  executive  business  is  done ; 
and  leaving  the  bill  there  on  the  gov- 
ernor's table,  even  in  liis  absence,  is  a 
presentation.  The  justices  say  as  to 
personal  presentation  elsewhere :  "  It 
would  be  absurd  to  hold  that  the  offi- 
cers of  the  senate  and  house  of  repre- 
sentatives are  obliged,  in  order  to 
perform  theii*  dutj',  to  follow  the  gov- 
ernor wherever  he  may  chance  to  go, 
whether  in  the  state  or  out  of  it,  upon 
his  private  business  as  weU  as  public, 
and  present  it  to  him  in  person  wher- 
ever he  may  happen  to  be." 
^  See  post,  ch.  V. 


CHAPTER  III. 

FOmiS   OF  LEGISLATION  — REFERENCE  TO  THE  ENACTING 
POWER,  AND  THE  DELEGATION  OF  IT. 

§  60.  Forms  of  legislation.  |  §  69.  What  is  a  delegation  of  legis- 

lative power. 

70.  Exceptions   wliich  have   been 
established. 

71.  Effect  of  submitting  laws,  etc., 
to  popular  vote. 

75.  Local  laws  may  be  submitted. 


63.  Constitutional    regulations    of, 

dii-ectory  in  certain  states. 

64.  Mandatory  in  others. 

65.  As  to  enacting  style. 

67,  Legislative    power   cannot   be 
delegated. 


§  60.  Forms  of  legislation. —  A  bill  is  a  form  or  draft  of  a 
law  presented  to  a  legislature,  but  not  yet  enacted,  or  before 
it  is  enacted;  a  proposed  or  projected  law.^  This  is  the  mean- 
ing of  a  bni  in  practice,  and  has  been  judicially  commended.- 
It  is  an  act  after  it  has  gone  through  the  process  of  enactment 
and  become  a  law.  A  legislative  act  or  statute  is  a  bill  passed 
and  approved  under  the  introductory  words,  formula  or  style, 
"  Be  it  enacted."  The  term  bill  is  sometimes  loosely  applied, 
to  mean  the  same  as  an  act,  as  well  as  to  other  forms  of  pro- 
posed or  completed  legislation.*  These  terms,  hill  and  act,  are 
used  as  synonymous  in  some  of  our  constitutions.* 

§  61.  Ordinances  have  sometimes  been  distinguished  from 
statutes  in  practice ;  not  that  to  ordain  is  of  less  force  than  the 
expression  to  enact,  but,  as  Lord  Coke  says,  because  an  ordi- 
nance has  not  the  assent  of  the  king,  lords  and  commons,  being 
made  by  only  one  or  two  of  those  powers.  It  is,  however, 
stated  in  Bacon's  Abridgment  that  this  distinction  has  been 
disputed.  It  is  there  laid  down  that  "  with  regard  to  parha- 
mentary  forms  this  much  seems  agreed :  that  where  the  pro- 
ceeding consisted  only  of  a  petition  from  parliament,  and  an 
answer  from  the  king,  these  were  entered  on  the  parliament 
roU ;  and  if  the  matter  was  of  a  public  nature,  the  whole  was 

i  Webster's  Diet  3  Gushing,   L.   &    P.   of  Leg.  Ass. 

»  May  V.  Rice,  91  Ind.  549.  §  2055. 

<  People  V.  Lawrence,  36  Barb.  185. 


FORMS   OF    LEGISLATIOX,  ETC.  61 

then  usually  styled  an  ordinance ;  if,  however,  the  petition  and 
answer  were  not  only  of  a  pubUc  but  a  novel  nature,  they  were 
then  formed  into  an  act  by  the  king,  with  the  aid  of  his  coun- 
cil and  judges,  and  entered  on  the  statute  roll/'  ^  It  is  also 
laid  down  by  the  same  authority  that  an  ordinance  on  the  par- 
liamentary roll,  with  the  king's  assent  upon  it,  has,  neverthe- 
less, equal  force  with  a  statute.^  The  term  ordinance  is  more 
usually  applied  to  the  acts  of  a  corporation,  and  as  synony- 
mous with  by-law.''  It  has,  however,  been  often  used  in  more 
solemn  acts  of  the  states  and  of  the  general  government.* 
Eesolutions,  or  joint  resolutions,  are  a  form  of  legislation 
which  has  been  in  frequent  use  in  this  country,  chiefly  for  ad- 
ministrative purposes  of  a  local  or  temporary  character,  and 
sometimes  for  private  purposes  only.  It  is  recognized  in  many 
of  our  constitutions,  in  w^hich,  and  in  the  rules  and  orders  of 
our  legislative  bodies,  it  is  put  upon  the  same  footing  and 
made  subject  to  the  same  regulations  as  bills  properly  so  caUed.* 
By  legislative  practice  and  usage,  joint  resolutions  have  the 
force  of  law,  whether  applied  to  administrative,  local  or  tem- 
porary matters,  or  intended  for  important  measures.^ 

§  62.  Constitutional  forms  directory  in  certain  states. — 
Many  constitutions  provide  that  laws  shall  be  enacted  by  bill, 
and  direct  that  the  style  shaU  be,  "  Be  it  enacted,"  etc.  In  a 
few  states  such  provisions  have  been  held  to  be  directory. 
Thus,  in  Swann  v.  Buck,^  it  was  so  held  that  a  joint  resolution 
passed  by  all  the  forms  of  legislation  was  valid  —  that  the  word 
"  resolved  "  is  as  potent  to  declare  the  legislative  will  as  the 
word  "  enacted."  The  court  say :  "  The  argument  against  re- 
quiring a  literal  compliance  with  any  form  of  words  in  the 
enacting  clause,  as  a  condition  of  giving  effect  to  a  statute, 
would  be  very  strong  on  the  score  of  convenience;  for  the 
plainest  expressions  of  the  legislative  will,  and  the  most  urgent 
in  their  character,  would  be  constantly  liable  to  be  defeated 
by  the  slightest  omission  or  departure  from  the  established 
phraseology.  No  possible  good  could  be  achieved  by  such 
strictness,  and  the  greatest  evil  might  result  from  it.     There 

1  Bac.  Abr.  Statute  A.  5  Cusliing,  L.  &  Pr.  Leg.  Ass.  §  2403 ; 

2  Id.  Swann  v.  Buck,  40  Miss.  29a 

3  Bish.  Written  Laws,  §  18.  « Id. 

4  Cush.  L.  &  Pr.  Leg.  Ass.  §  2046.  '40  Miss.  26a 


62  rOKMS    OF    LEGISLATION,  ETC. 

are  uo  exclusive  words  in  tlie  constitution  negativing  the  use 
of  any  other  language,  and  we  think  the  intention  will  be  best 
effectuated  by  holding  the  clause  to  be  directory  only." 

§  63.  The  several  constitutions  of  Mississippi  mal^e  a  plain 
distinction  between  bills  and  resolutions,  as  does  the  constitu- 
tion of  Indiana.  There  seems  to  be  many  of  the  contrasts 
pointed  out  in  the  opinion  in  May  v.  Pace,'  which  will  pres- 
ently be  referred  to  particularly.^  The  constitutions  of  Mary- 
land have  made  no  provision  for  any  form  of  legislation  but 
by  "  original  bill."  They  have  provided  that  "  The  style  of  aU 
laws  .  .  .  shallbe, 'Beit  enacted  by  the  general  assembly 
of  Maryland ; '  and  all  laws  shall  be  passed  by  original  bill."  * 
The  case  of  McPherson  v.  Leonard  *  does  not  altogether  follow 
Swann  v.  Buck  ^  in  the  reasoning  upon  which  the  court  ar- 
rived at  the  conclusion  that  the  foregoing  provisions  are  direct- 
ory. The  Mississippi  case  concedes  that,  to  be  vaHd,  an  act 
should  refer  to  the  enacting  authority.  That  was  the  point 
of  the  objection  to  the  act  in  the  Maryland  case.  The  court 
held  the  above  provisions  dhectory,  and,  therefore,  as  the 
court  said,  "  may  be  disregarded  without  rendering  the  act 
void."  It  was  so  held  upon  the  rule  apphcable  in  the  con- 
struction of  statutes  that  provisions  which  relate  to  form, 
and  not  to  the  essence  and  substance  of  the  thing  to  be 
done,  are  dhectory  unless  the  statute  is  restrictive  to  the 
mode  and  form  prescribed.^  The  constitution  of  Missouri 
prescribes  also  a  precise  ^ijlQ,  and  declares  it  shaU  be  the 
style  of  the  laws  of  that  state.'^  The  act  in  question  in  the 
City  of  Gu-ardeau  v.  Kiley  ^  had  no  en  noting  clause  or  style. 
That  provision  of  the  constitution  v,  i.  held  du-ectory  and 
the   act  vahd,  and  upon  the   same  argument  put  forth   in 

191  Ind.  546.    Const.  1817,  art.  3,  540  Miss.  293. 

§§  4,  23,  24 ;  art.  4,  §§  15,  16 ;  art  6,  e  Citing  Sedgw.  on  St  &  Con.  L. 

§§  2,  8,  10,  11,  14.   Const  1832,  art  3,  368  et  seq.,  and   cases   there  cited ; 

gg  4,  23,  24 ;  art  5,  §§  15,  16 ;  art  7,  Smith  on  S.  &  C.  Con.  §  679 ;  Sti'iker 

§§  2,  6,  7,  9,  10.    Const  1868,  art.  4,  v.  KeUy,  7  Hill,  24;  Pacific  R  R.  v. 

g§  23,  24,  25,  26,  32 ;  art  12,  §§  2,  4,  The  Governor,  23  Mo.  308.    See  post, 

8, 11.  §§  448,  451. 

•-' See  posi,  §64.  <  Const  1820,  art  3,  §  36;   Const 

3  Const  1851,  art.  3,  §§  17, 18, 19, 20 ;  1865,  art  4,  §  26 ;  Const  1875,  ai-t  4, 

Const  1864,  art  3,  §§  26, 27,  28 ;  Const  §  24. 

1867,  art  3,  §§  27.  28,  29,  33.  8  52  Mo.  424 

*29Md.377. 


FORMS    OF    LEGISLATION,  ETC.  63 

McPherson  v,  Leonard.^  The  court  remarked  on  the  simi- 
larity of  the  language  as  to  process  requiring  writs  to  run  in 
the  name  of  the  state,  and  that  that  provision  had  been  held  to 
be  directory.- 

§  01.  Constitutional  forms  mandatory  in  other  states. — 
The  requirement  that  laws  shall  be  passed  under  a  j^recise 
enacting  style,  commencing  with  the  words,  '•  Be  it  enacted," 
and  referring  to  the  enacting  authority,  has  been  held  man- 
datory in  Indiana,  Nevada,  Alabama,  Rhode  Island  and  West 
Virginia.  In  other  states  the  courts  have  held  other  provis- 
ions of  the  constitutions  of  like  nature  to  be  mandatory.'  In 
Indiana  the  constitution  plainly  distinguishes  between  bills 
and  resolutions,  as  does  the  constitution  of  Mississippi.  In 
May  V.  Eice,*  the  question  was  whether  money  could  be  ap- 
propriated by  a  joint  resolution.  It  was  held  that  such  a  reso- 
lution is  ineffectual  for  that  purpose.  The  constitution  pro- 
hibits the  drawing  of  money  fi'om  the  state  treasury,  except 
in  pursuance  of  appropriations  made  by  law.  It  also  requires 
that  " the  style  of  every  law  shall  be :  'Be  it  enacted  b}^  the 
general  assembly  of  the  state  of  Indiana,'  and  no  law  shall  be 
enacted  except  by  bill."  •'  The  resolution  was  held  not,  eo 
nomine^  enacted  as  a  "  bill."  The  opinion  answers  thi'ee  in- 
quiries :  1st.  "  Is  it  essential  to  constitute  a  law,  in  the  sense 
in  which  that  term  is  used  in  the  constitution,  that  the  enact- 
ment shall  have  been  presented  and  passed  as  a  bill?  2d.  Is  it 
essential  in  the  enactment  of  a  law  that  the  words  prescribed 
for  the  enacting  clause  shall  be  used,  or  may  the  words  '  Be 
it  resolved'  be  substituted  for  '  Be  it  enacted  ? '  Out  of  these 
inquiries,"  say  the  court,  "  springs  the  more  general  one :  3d. 
Is  this  resolution  a  law,  in  any  sense,  as  that  term  is  used  in 
these  sections  of  the  constitution  ...  in  relation  to  the 
appropriation  of  money?"  The  first  two  were  answered  in 
the  affirmative,  and  the  last  in  the  negative. 

The  opinion  points  out  important  differences  in  the  proced- 
ure for  the  passage  of  bills  from  that  which  may  be  foUowed 
in  the  adoption  of  resolutions,  showing  that  the  former  only 

1  Supra.  3  See  anie,  %%  29-35 ;  ^sr,  §  79. 

2  Davis  V.  Wood,  7  Mo.  165 ;  Jump        *  91  lud  546. 

V.  Batton,  35  id.  196;  Doan  v.  Boley,  5  Const  1851,  art  4,  sec.  1 ;  art  10, 
38  id.  449.  sec  3. 


64 


FORMS    OF    LEGISLATION,  ETC. 


are  intended,  for  the  enactment  of  laws.  These  differences 
may  be  observed  in  other  constitutions,  and  therefore  a  con- 
siderable extract  from  the  opinion  has  been  quoted  in  note 
below.^  The  words  of  the  enacting  style  need  not  precede  a 
preamble,  but  should  precede  the  entire  law.- 


1  Zollards,  J. :  "  Is  a  resolution  a 
bill?  Perhaps  as  accurate  a  defini- 
tion of  a  bill  as  can  be  f  oimd  is  that 
given  in  Webster's  Dictionary :  '  A 
form  or  di-af t  of  a  law,  presented  to 
a  legislatiu-e,  but  not  yet  enacted; 
a  proposed  or  projected  law.'  '  In 
some  cases  statutes  are  called  bills, 
but  usually  they  are  qualified  by 
•some  description;  as,  a  bill  of  attain- 
der.' Bills  and  acts  are  sometimes 
used  as  sjTiouymous  terms.  Gush- 
ing, sec.  2055.  The  definition  of  a 
bill  as  given  by  Webster  is  that  usu- 
ally accepted  and  acted  upon;  but 
as  we  shall  see,  our  constitution  ex- 
tends it.  The  idea  conveyed  by  the 
word  bill  is  different  from  that  con- 
veyed by  the  word  resolution.  The 
distinction  between  a  biU  and  resolu- 
tion is  clearly  kept  up  in  the  consti- 
tution of  this  state  as  an  examina- 
tion of  its  provisions  will  show.  AVe 
caU  attention  to  some  of  the  sections 
of  article  4.  BiUs  may  originate  in 
either  house,  except  revenue  bills. 
Sec.  17.  The  vote  on  the  passage  of 
a  bill  or  joint  resolution  shall  be 
taken  by  yeas  and  nays.  The  bill 
must  be  read  by  sections  on  three 
different  days,  etc.  Sec.  18.  A  joiat 
resolution  of  different  sections  doubt- 
less may  be  passed  upon  one  reacUug. 
Every  act  shall  embrace  but  one  sub- 
ject and  matters  properly  connected 
therewith,  which  subject  shall  be  em- 
braced in  the  title.  Sec.  19.  There 
is  no  such  provision  in  relation  to 
joint  resolutions.  No  act  shall  ever 
be  revised  or  amended  by  mere  refer- 
ence to  its  title.   Sec.  21.   This  section 


has  no  reference  to  joint  resolutions. 
No  "act"  shall  take  effect  until  the 
same  shall  have  been  published  and 
cux'ulated  in  the  several  coimties  of 
the  state  by  authoritj-,  except  in 
cases  of  emergency,  etc.  Sec.  28. 
This  can  have  no  reference  to  joint 
resolutions.  They  take  effect  as  soon 
as  passed.  .Bfils  and  joint  resolu- 
tions must  be  passed  by  a  vote  of  a 
majority  of  the  members  of  the  le^- 
islatm-e,  and  w^hen  so  jiassed  shall 
be  signed  by  the  presiding  ofiicers 
of  the  respective  houses.  Tliese 
requisites  they  have  in  common,  but 
the  distinction  is  clearly  kept  up. 
Sec.  25.  In  section  14  of  article  5,  a 
bm  is  recognized  as  stiU  a  biU,  after 
its  passage  and  until  it  has  reached 
the  governor.  Eveiy  bill  which  has 
passed,  etc.,  shall  be  presented  to  the 
governor.  The  governor  is  required 
either  to  sign  the  biU,  or  return  it  to 
the  house  in  which  it  may  have 
originated,  with  his  objections,  etc. 
If  he  sign  the  biU,  it  becomes  a  law. 
If  he  veto  it,  and  it  is  not  repassed 
by  the  requisite  vote,  it  does  not  be- 
come a  law.  Notliing  of  the  kind 
is  requu-ed  in  relation  to  a  joint 
resolution  under  our  constitution  as 
we  imderstand  and  interjiret  that 
instiimient.  Such  a  resolution,  if 
passed  by  the  requisite  vote,  and 
signed  by  the  presiding  officers,  is 
in  full  force.  Notliing  would  be 
added  to  its  validity  and  force  by 
the  signature  of  the  governor,  nor 
has  he  any  power  to  defeat  it  by 
a  veto.  It  does  not  go  to  him  for 
any  pm-pose  of  approval   or  disap- 


2  Barton  v.  McWhinney,  85  Ind.  481. 


FOR^rS    OF    LEGISLATION,  ETC. 


65 


§  65.  Same  —  The  required  enacting  style  must  bo 
adopted. —  The  same  question  arose  in  Kevada  as  in  McPher- 
son  V.  Leonard.'     The  provision  of  the  constitution  in  Nevada 


provaL  It  appears  from  tlie  consti- 
tutional debates  that  a  proposition  to 
include  joint  resolutions  witli  bills  in 
the  above  section,  so  that  they  should 
be  sent  to  the  governor,  was  voted 
down.  2  Deb.  Const.  Conv.  p.  1331. 
Tliis  action  of  the  convention  is  the 
more  significant  when  we  recollect 
that  the  convention  was  in  a  work  of 
reform,  adapting  the  new  constitu- 
tion to  the  increased  wants  and  dan- 
gers of  a  rapidly  increasing  and  pro- 
gressive population,  and  that  the 
constitution  of  1816,  which  was  be- 
ing superseded,  pro\dded  for  joint 
resolutions  as  well  as  biUs  to  be 
sent  to  the  governor  for  liis  approval 
or  disapproval,  and  to  be  ti-eated  by 
Mm  and  the  legislatiu'e  as  bills  if 
vetoed  by  Mm.  It  is  very  apparent 
from  this  examination  of  the  consti- 
tution that  the  terms  bill  and  joint 
resolidion,  as  used  therein,  do  not 
mean  the  same  thing.  They  are 
widely  different.  Theii-  functions  are 
altogether  different.  Authority  to 
act  by  joint  resolution  is  given,  af- 
fii-matively,  by  the  constitution  in 
but  few  ioiitances. 

"  By  such  resolution,  the  two  houses 
may  adjom-n  for  more  than  tlu-ee 
days.  Art.  4,  sec.  10.  Certeiin  offi- 
cers may  be  removed  by  such  resolu- 
tion. Art  6,  sec.  7.  Possibly  ixnder 
section  17  of  article  5,  the  powers 
granted  to  grant  pardons,  etc.,  may 
be  exercised  by  such  resolution.  Be- 
sides the  authority  tlius  granted,  a 
joint  resolution  doubtless  may  be  the 
means  of  expressing  the  legislative 
wiU  in  refei'euce  to  the  dischai'ge  of 
an  administi-ative  duty,  if  such  ex- 
pression f  iiUs  short  of  the  enactment 
of  a  law.  The  general  and  most 
5 


common  use  of  resolutions  is  in  the 
adoption  of  rules  and  ordei-s  relative 
to  the  proceedings  of  the  legislative 
body.  Cusliing,  supra,  sec.  779; 
Mays  Par.  Prac.  pp.  440,  447,  450. 
Oui-  conclusion  upon  this  branch  of 
the  case  is  that  a  joint  resolution 
under  oiu-  constitution  is  not  a  bill, 
and  that  laws  for  the  appropriation 
of  money  for  public  purposes  or  the 
payment  of  private  claims  .  .  . 
cannot  be  enacted  by  joint  resolu- 
tion. This  view  is  sustained  by  the 
cases  of  Bany  v.  Viall,  12ll.  I.  1,  18 ; 
Eeyuolds  v.  Blue,  47  Ala,  711 ;  Brown 
V.  Fleischner,  4  Oregon,  133 ;  Boyen 
V.  Crane,  1  W.  Va.  176." 

In  deference  to  the  opinion  in 
Swann  v.  Buck,  40  ]\Iiss.  268,  the 
court  in  May  v.  Rice  appear  to  con- 
sider the  expression  "  every  law,"  in 
the  provision  of  the  Indiana  consti- 
tution relative  to  the  enacting  style, 
as  more  comprehensive  and  exclusive 
tlian  the  expression  "  the  laws  of  this 
state"  in  the  corresponding  provis- 
ion of  the  Mississippi  constitution. 
The  latter  are  the  words  of  the  Mis- 
sissippi constitution,  and  the  court, 
in  Swann  v.  Buck,  said,  "  there  are 
no  exclusive  words  in  the  constitu- 
tion negativing  the  use  of  any  other 
language ; "  meaning,  doubtless,  that 
the  constitution  did  not  forbid  the 
use  of  any  other  words,  or  the  pas- 
sage of  a  law  without  those  pre- 
scribed ;  for  "  the  laws  of  this  state  " 
include  all,  as  much  as  the  expres- 
sion "every  law."  If  a  command 
broad  enough  affirmatively  to  include 
aU  the  laws  impUes  a  negative,  tlien 
one  is  imphed  from  tlie  language  of 
the  constitutions  of  both  states. 
1 29  Md.  386 ;  ante,  %  2. 


Q6  FORMS   OF    LEGISLATION,  ETC. 

is  that  "  tlie  enacting  clause  of  every  law  shall  be  as  follows : 
'  The  people  of  the  state  of  ISTevada,  represented  in  senate  and 
assembly,  do  enact.'  "  In  the  case  in  which  the  question  was 
discussed,'  it  appeared  that  an  act  was  passed  in  the  enacting 
clause  of  which  there  was  omitted  the  words  "  senate  and." 
The  act  was  held  unconstitutional  and  void.  In  the  opinion, 
the  court  responds  to  the  declaration  in  the  Maryland  case 
that  the  enacting  style  is  not  of  the  essence  and  substance  of 
the  enactment.  Hawley,  C.  J.,  said  that  statement  is  clearly 
erroneous  and  the  opinion  fallacious.  "  How  can  it  be  said 
that  these  words  are  not  of  the  essence  and  substance  of  a  law 
when  the  constitution  declares  that  the  enacting  clause  of 
every  law  shall  contain  them."  He  quoted,  with  apparent  ap- 
proval from  the  dissenting  opinion  of  Stewart,  J.,  in  the  Maiy- 
land  case,  that  it  is  incumbent  on  the  law-making  department 
to  pursue  the  constitutional  mode.  "If  a  positive  requu^e- 
ment  of  this  character  .  .  .  can  be  disregarded,  so  may 
others  of  a  different  character ;  and  where  wiU  the  limit  be 
affixed  or  practical  discrimination  made  as  to  what  parts  of 
the  organic  law  of  the  state  are  to  be  held  advisory,  directory 
or  mandatory?  Disregard  of  the  requirements  of  the  consti- 
tution, although,  perchance,  in  matters  of  mere  form  and  st3de, 
in  any  part,  in  law,  may  establish  dangerous  examples,  and 
should  in  aU  proper  ways  be  discountenanced.  The  safer 
policy,  I  think,  is  to  follow  its  plain  mandates  in  matters  that 
may  appear  not  to  be  material,  in  order  that  the  more-  sub- 
stantial parts  may  be  duly  respected.  If  those  who  are  dele- 
gated with  the  trust  of  making  the  laws,  from  the  purest 
motives  improvidently  omit  the  observances  of  the  constitution 
under  any  circumstances,  such  oversight  may  be  referred  to 
in  the  future  by  others,  with  far  different  views,  as  prece- 
dents, and  for  the  purpose  of  abuse.  A  higher  responsibility 
is  imposed  upon  those  selected  by  the  people  for  the  discharge 
of  legislative  duty,  and  a  greater  obligation  is  demanded  of 
them  to  exemplify,  by  their  practice,  a  careful  comphance 
with  the  constitution.  By  a  vigilant  observance  of  its  com- 
mands, the  more  reasonable  is  the  probability  that  the  best 
order  wiU  be  secured.     It  is  unnecessary  to  illustrate,  by  any 

1  State  V.  Rogers,  10  Nev.  250. 


FORMS    OF    LEGISLATION,  ETC,  67 

argument,  the  soundness  of  this  general  consideration,  which 
I  am  sure  all  will  admit  to  bo  unquestionable,  that  a  strict 
conformity  is  an  axiom  in  the  science  of  government.  I  cer- 
tainly entertain  such  profound  conviction  of  its  truth  that  I 
do  not  feel  authorized  to  give  my  approval  to  this  act  as  a 
valid  law;  but,  on  the  contrary,  am  constrained  to  say  that 
the  omission  of  the  style  requu-ed  by  the  constitution  is  fatal 
to  its  validity."  ^ 

§  66.  The  modern  constitutions  go  more  and  more  into  de- 
tail in  regulating  the  exercise  of  the  several  powers  which 
they  grant.  The  object  is  manifestly  to  correct  existing  or 
apprehended  mischief ;  not  to  legislate  merely  for  order  and 
convenient  system.  These  regulations  are  in  the  fundamental 
law ;  they  express  the  sovereign  will  of  the  people,  and  ought 
to  be  treated  as  limitations  on  the  exercise  of  those  powers. 
The  modes  prescribed  for  the  exercise  of  the  granted  powers 
cannot  be  severed  from  the  substantive  things  authorized  to 
be  done ;  the  manner  directed  is  the  means  —  the  appointed 
action  —  through  which  alone  the  power  is  effective  for  the 
substantive  objects  intended  to  be  accomplished.  The  legis- 
lature must  be  constituted,  sit  at  the  time  and  place,  and  pro- 
ceed in  the  methods  dictated  by  its  creator ;  otherwise  it  is  not 
clothed  with  nor  exercising  the  sovereign  legislative  power. 
The  great  weight  of  authority  supports  this  view." 

1  Cushing's  L.  &  Pr.  Leg.  Ass.  to  establish  those  f  uudamental  max- 
J.  819,  §  2102 ;  Seat  of  Government  ims,  and  fix  those  unvarying  rules. 
Case,  1  Wash.  T.  115.  by  which  aU  departments  of  the  gov- 

2  See  ante,  §§  30,  41 ;  j^o^ff  §  ''Q  5  ernment  must  at  aU  times  shape  their 
Cooley,  Con.  L.  94  This  learned  conduct;  and  if  it  descends  to  pre- 
author  says  the  courts  ti-ead  upon  scribing  mere  iTdes  of  order  in  unes- 
veiy  dangerous  gTOimd  M'hen  they  sential  mattei-s,  it  is  lowering  tlie 
venture  to  apply  the  rules  which  dis-  proper  dignity  of  such  an  instru- 
tinguish  directory  and  mandatory  ment  and  usmrping  the  proper  prov- 
statutes  to  the  provisions  of  a  consti-  ince  of  ordinary  legislation.  We  are 
tution.  "  Constitutions  do  not  usually  not,  therefore,  to  expect  to  find  in  a 
undertake  to  prescribe  mere  rules  of  constitution  provisions  wliich  the 
proceeding,  except  when  sucli  rules  people,  in  adopting  it,  have  not  re- 
are  looked  upon  as  essential  to  the  garded  as  of  liigh  importance,  and 
thing  to  be  done ;  and  they  then  must  worthy  to  be  embraced  in  an  instru- 
be  regarded  in  the  light  of  h  nutations  ment  which,  for  a  time  at  least,  is  to 
upon  the  power  to  be  exercised.  It  control  alike  the  government  and  tlie 
is  the  province  of  an  instrument  of  govarned,  and  to  form  a  standard  by 
this  solemn  and  permanent  character  which  is  to  be  measured  the  power 


GS 


rOEMS    OF    LEGISLATION,  ETC. 


§67.  The  legislatiye  poAver  cannot  be  delegated. —  The 

power  to  make  laws  for  a  state  vested  in  the  legislature  is  a 
sovereign  power,  requiring  the  exercise  of  judgment  and  dis- 
cretion. It  is  a  delegated  power, —  delegated  in  a  constitution 
by  the  people  in  whom  inherently  are  all  the  powers.  On  com- 
mon-law principles,  as  well  as  by  settled  constitutional  law,  it 
is  a  power  which  cannot  be  delegated.^ 

This  is  a  general  rule  or  maxim ;  but  like  all  other  rules  of 
the  common  law  it  is  flexible,  extending  as  far  as  the  reason 
and  principles  on  which  it  is  founded  go,  and  ceasing  when 
the  reason  ceases.  It  admits  of  exceptions  connected  with  the 
principle  Avhich  supports  the  rule,  or  which  may  be  presmned 


whicli  can  be  exercised  as  well  by  tlie 
delegate  as  by  the  sovereign  people 
themselves.  If  dii'ections  are  given 
respecting  the  times  or  modes  of  pro- 
ceeding ill  which  a  power  should  be 
exercised,  there  is  at  least  a  strong 
presumj)tion  that  the  people  designed 
it  should  be  exercised  in  that  time 
and  mode  only."  State  v.  Johnson, 
26  Ark.  281;  Wolcott  v.  Wigton,  7 
Ind.  44;  per  Bronson  in  People  v. 
Pm-dy,  2  Hill,  36 ;  Greencastle  Town- 
sliip  V.  Black,  5  Ind.  566 ;  Opinion  of 
Judges,  6  Sheply,  458.  See  People  v. 
Lawi-ence,  36  Barb.  177.  "  The  essen- 
tial nature  and  object  of  constitu- 
tional law  being  resti-ictive  upon  the 
powers  of  the  several  departments  of 
the  government,  it  is  difficult  to  com- 
prehend how  its  provisions  can  be  re- 
garded as  merely  directory."  Nichol- 
son, C.  J.,  in  Cannon  v.  Mathes,  8 
Heisk.  504,  517.  Mr.  Cooley  adds  that 
"  We  impute  to  the  people  a  want  of 
due  appreciation  of  the  purpose  and 
proper  province  of  such  an  instru- 
ment, when  we  infer  that  such  direc- 
tions are  given  to  any  other  end. 
Especially  when,  as  has  been  akeady 
said,  it  is  but  fan-  to  presume  tliat  the 
people  in  then*  constitution  have  ex- 
pressed themselves  in  careful  and 
measured  terms,  con-esponding  with 
the  immense  importance  of  the  pow- 


ers delegated,  and  with  a  view  to 
leave  as  httle  as  possible  to  impHca- 
tion."  People  v.  Supervisors  of  Che- 
nango, 8  N.  Y.  328. 

1  Carhsle  v.  Carlisle's  Adm.  2  Harr. 
318 ;  Berger  v.  Duff,  4  John.  Ch.  368 ; 
Hunt  V.  Bun-el,  5  Jolm.  137;  Fams- 
worth  V.  Lisbon,  62  Me.  451 ;  Brewer 
V.  Brewer,  id.  62 ;  State  v.  Hudson 
County,  37  N.  J.  L.  12 ;  State  v.  Cope- 
land,  3  R.  I.  33 ;  Willis  v.  Owen,  43 
Tex.  41;  People  v.  CoUins,  3  Michu 
343 ;  Rice  v.  Foster,  4  Harr.  479 ;  State 
V.  Parker,  26  Vt.  362 ;  Lockes'  Appeal, 
72  Pa.  St  491 ;  Parker  v.  Common- 
wealth, 6  id.  507 ;  State  v.  Swisher,  17 
Tex.  441 ;  Barto  v.  Hunrod,  8  N.  Y. 
483;  People  v.  Stout,  23  Barb.  349; 
Thorne  v.  Cramer,  15  Barb.  112 ;  Brad- 
ley V.  Baxter,  id.  122 ;  State  v.  Wil- 
cox, 45  Mo.  458;  Santo  v.  State,  2 
Iowa,  165';  Ex  parte  Wall,  48  Cal  279 ; 
Geebrick  v.  State,  5  Iowa,  491 ;  State 
V.  Beneke,  9  id.  203 ;  State  v.  Weir,  33 
id.  134;  S.  C.  11  Am.  R.  115;  Com- 
monwealth V.  ]McWiUiams,  11  Pa.  St 
61 ;  Maize  v.  State,  4  Ind.  842 ;  Mesh- 
meier  v.  State,  11  id.  482 ;  Cincinnati, 
etc.  R.  R.  Co.  V.  Commissioners,  1 
Ohio  St  77 ;  Cooley's  Con.  Lim.  142 
Slinger  v.  Hemieman,  38  Wis.  504 
Wayman  v.  Southard,  10  Wheat  1, 42 
Alcorn  v.  Hamer,  38  Miss.  652. 


FOKJIS    or    LEGISLATION,  ETC. 


69 


to  have  been  intended  by  the  party  or  people  wlio  are  the 
original  source  of  the  power. 

§  68.  The  legislative  department  as  an  integral  part  of  our 
political  system  is  confined  to  tlie  exercise  of  its  proper  pow- 
ers, and  possesses  them  exclusively,  as  the  other  departments 
severally  have  theu's.  As  the  possessor  of  the  law-making 
power,  it  may  confer  authority  and  impose  duties  upon  the 
others  and  regulate  the  exercise  of  their  several  functions.  It 
may  pass  general  laws  for  that  purpose,  giving  them  expressly 
or  by  necessary  implication  an  incidental  discretion  to  employ 
the  proper  means  to  fill  up  and  regulate  the  details  for  them- 
selves and  subordinates,  though  the  exercise  of  that  discretion 
be  quasi  legislative.  This  is  iQustrated  by  laws  empowering 
the  courts  in  the  exercise  of  their  jurisdiction  to  adopt  rules 
of  practice  and  forms   of  procedure ;  ^  and  by  the  powers 


1  Wayman  v.  Southard,  10  Wheat  1 ; 
Bank  of  United  States  v.  Halstead, 
id.  51 ;  Coleman  v.  Newby,  7  Kan.  88 ; 
Andei-son  v.  Levely,  58  Md.  192; 
Thompson  v,  Floyd,  2  Jones'  L.  313 ; 
Ross  V.  Duval,  13  Pet  45. 

In  Wayman  v.  Southard,  supra, 
Marshall,  C.  J.,  said :  "  It  wiU  not  be 
contended  that  congress  can  delegate 
to  the  courts,  or  to  any  other  ti-ibunal, 
powers  which  are  stiictly  and  exclu- 
sively legislative.  But  congress  may 
certainly  delegate  to  others  powers 
which  the  legislature  may  rightfully 
exercise  itself.  Without  going  fur- 
ther for  examples,  we  will  take  that 
tlie  legality  of  wliich  the  counsel  for 
the  defendants  admit  The  seven- 
teenth section  of  the  judiciary  act, 
and  the  seventh  section  of  the  adtU- 
tional  act,  empower  the  courts  re- 
spectively to  regTilate  their  practica 
It  certainly  will  not  be  contended 
that  tbis  might  not  be  done  by  con- 
gress. The  courts,  for  example,  may 
make  rules  cUrecting  the  returning 
of  \\Tits  and  processes,  the  filing  of 
declarations  and  other  pleadings,  and 
other  thii^gs  of  the  same  description. 
It  wiU  not  be  contended  that  these 
things  might  not  be  done  by  tlie  leg- 


islature without  the  intervention  of 
the  courts ;  yet  it  is  not  alleged  that 
the  power  may  not  be  conferred 
on  the  judicial  department 

"The  hne  has  not  been  exactly 
drawn  wliich  separates  those  impor- 
tant subjects  wliich  must  be  entirely 
regulated  by  the  legislature  itself, 
from  those  of  less  interest  in  wliich 
a  general  provision  may  be  made, 
and  a  general  power  given  to  those 
who  are  to  act  under  such  general 
provisions  to  fill  up  the  details.  The 
seventeenth  section  of  the  juchciary 
act  of  1787,  ch.  20,  enacted  '  Tliat  all 
the  said  coui-ts  shall  have  power  to 
make  and  establish  all  necessary 
lilies  for  the  orderly  conducting  busi- 
ness in  the  said  courts,  provided  such 
rules  are  not  repugnant  to  tlie  laws 
of  the  United  States ; '  and  the  sev- 
enth section  of  tlie  act  refeired  to  as 
the  additional  act  (act  1793,  ch.  22, 
§  7)  details  more  at  large  the  powers 
conferred  by  the  seventeenth  section 
of  the  judiciary  act  These  sections 
were  held  to  give  the  court  f uU  jm-is- 
diction  over  all  matters  of  practice" 
The  question  in  this  case  related  to 
execution. 

"  A  general  superintendence,"  say 


ro 


FORMS   OF    LEGISLATION,  ETC. 


granted  to  the  president  in  such  cases  as  that  disclosed  in 
Houston  V,  Moore.'  An  act  of  congress  authorized  the  presi- 
dent in  certain  exigencies  to  call  forth  such  number  of  the  mi- 
litia of  the  states  most  convenient  to  the  scene  of  action  as  he 
might  judge  necessary,  and  to  issue  his  orders  for  that  purpose 
to  such  officers  of  the  militia  as  he  should  thiiik  proper.^  It 
prescribed  a  punishment  for  failing  to  obey  the  orders  of  the 
president  as  an  offense  against  the  laws  of  the  United  States.* 
Another  conspicuous  example  of  such  discretion  confided  to 
the  president  was  the  act  of  congress  in  1863  empowering  him 
to  suspend  the  writ  of  habeas  corpus} 

The  true  distinction  is  between  the  delegation  of  power  to 


the  court, "  over  this  subject  seems  to 
be  properly  within  the  judicial  prov- 
ince, and  has  always  been  so  consid- 
ered. It  is,  imdoubtedly,  proper  for 
the  legislatm-e  to  prescribe  the  man- 
ner in  which  these  ministerial  offices 
shall  be  performed,  and  tliis  duty  wUl 
never  be  devolved  on  any  other  de- 
partment without  ui'gent  reasons. 
But  in  the  mode  of  obeying  the  man- 
date of  a  Avrit  issuing  from  a  court, 
so  much  of  that  which  may  be  done 
by  the  judiciary,  vmder  tlie  authority 
of  fhe  legislatui'e,  seems  to  be  blended 
with  that  for  wliich  the  legislatm-e 
must  expressly  and  dii-ectly  provide, 
that  there  is  some  difficulty  in  dis- 
cerning the  exact  limits  within  wliich 
the  legislature  may  avail  itself  of  the 
agency  of  its  courts.  The  diif  erence 
bet'ween  the  departments  undoubt- 
edly is,  that  the  legislature  makes, 
the  executive  executes,  and  the  judi- 
ciary construes  the  law;  but  the 
maker  of  the  law  may  commit  some- 
thing to  the  discretion  of  the  other 
departments,  and  the  precise  bound- 
ary of  this  power  is  a  subject  of  deli- 
cate and  difficult  inquiiy,  into  which 
a  court  wUl  not  enter  vmnecessarily." 
In  Coleman  v.  Newby,  supra,  Val- 
entine, J.,  said:  "If  the  legislature 
says  that  the  district  courts  shall,  in 
certain  cases,  be  clothed  with  certain 


discretionary  power,  where  does  the 
supreme  court  get  authority  to  say 
that  the  district  coui't  shall  not  be 
clothed  with  such  discretionaiy 
power  by  making  iTdes  hmiting  that 
discretion?  It  is  not  in  the  natui-e  of 
things  for  one  court  to  exercise  dis- 
cretion for  another  court;  and  if  it 
cannot,  who  shall  say  that  it  can,  as 
a  judicial  act  or  otherwise,  make 
rules  limiting  or  regulating  the  de- 
cision of  another  court?  An  attempt 
to  do  so  is  an  attempt  to  legislate. 
It  is  claimed,  however,  that  the  legis- 
latm-e have  authorized  the  supreme 
court  to  make  rules  for  the  district 
com-t ;  but  this  the  legislature  could 
not  do  if  they  would.  The  making 
of  rules  is  not  a  subject  of  judicial 
power,  as  has  already  been  shown ; 
and  the  legislatm-e  cannot  bi-ing 
under  the  judicial  power  a  matter 
wliich  from  its  natm-e  is  not  a  subject 
for  judicial  determination."  Mur- 
ray V.  Hoboken  Land  Imp.  Co.,  18 
How.  284 ;  AucUtor  of  State  v.  A.  T. 
&  S.  Fe  R.  R.  Co.  6  Kan.  500. 

1  5  Wheat.  1. 

2  Act  2d  May,  1862. 

3  In  re  Griner,  16  Wis.  423. 

4  In  re  OUver,  17  Wis.  681 ;  Coe  v. 
Schultz,  47  Barb.  64;  Hilcb-eth  v. 
Crawford,  65  Iowa,  339;  21  N.  W. 
Rep.  667. 


FORMS    OF    LEGISLATION,  ETC.  71 

make  the  law  which  involves  a  discretion  as  to  what  the  law 
shall  be,  and  conferring  an  authority  or  discretion  as  to  its 
execution,  to  be  exercised  under  and  in  pursuance  of  the  law. 
The  first  cannot  be  done ;  to  the  latter  no  vahd  objection  can 
be  nuide.^ 

§  GO.  What  is  a  delegation  of  legislative  power? — The 
constitution  vests  this  power  in  the  legislature ;  it  must  there 
remain  by  force  of  the  constitution.     It  is  exclusively  vested 
in  the  legislature.     The  legislature  cannot  divest  itself  of  the 
power,  nor  impart  it  to  others,  except  in  accordance  with  this 
distinction,  though  there  are  some  recognized  exceptions  which 
■will  presently  be  considered.     Legislative  power  is  delegated 
contrary  to  the  maxim  stated  when  the  legislature  attempts 
to  confer  on  others  a  power  of  substantive  legislation,  to  be 
exercised  independently  or  in  conjunction  with  the  legislature, 
or  when  it  constitutes  an  inferior  leo:islature  or  law-makinof 
body.   An  instance  of  such  delegation  is  furnished  by  the  case 
Slinger  v.  Henneman.^  A  section  of  a  statute  relative  to  dogs 
made  the  owner  of  any  dog  liable  to  the  owner  of  domestic 
animals  wounded  by  it  for  the  damages  without  proving  a 
knowledge  of  its  vicious  disposition ;  by  a  provision  of  the  act, 
power  was  given  to  the  board  of  supervisors  to  determine 
whether  or  not  during  the  current  year  theii'  count}"  should 
be  governed  by  the  provisions  of  the  act  of  which  that  sec- 
tion constituted  a  part.    It  was  held  that  the  legislatm^e  could 
not  confer  that  power.     The  court  pertinently  remark  that 
it  could  no  more  confer  such  a  power  than  to  authorize  the 
board  of  supervisors  of  a  county  to  abolish  in  such  county 
the  days  of  grace  on  commercial  paper,  or  to  suspend  the  stat- 
ute of  limitations.   A  similar  statute  in  Missouri  was  held  void 
for  the  same  reason.'    A  general  statute  formulating  a  road 
system  contained  a  provision  that  "  if  the  county  court  of  any 
county  should  be  of  opinion  that  the  provisions  of  the  act 
should  not  be  enforced,  they  might,  in  their  discretion,  suspend 
the  operat  ion  of  the  same  for  any  specified  length  of  time ; 
and  thereupon  the    act  should  become  inoperative  in  such 
county  for  the  period  specified  in  such  order,  and  thereupon 
order  the  road  to  be  opened  and  kept  in  good  repair  under  the 

1  Cincinnati,  etc.  E.  R  Co.  v.  Com-        2  33  Wis.  504,  50S-510. 
niissioners,  1  Ohio  St  77.  3  State  v.  Field,  17  Mo.  529. 


72  FORMS    or    LEGISLATION',  ETC. 

laws  theretofore  in  force."  Gamble,  J.,  said,  "  this  act,  by  its 
own  provisions,  repeals  the  inconsistent  provisions  of  a  former 
act,  and  yet  it  is  left  to  the  county  court  to  say  which  act 
shall  be  in  force  in  their  county.  The  act  does  not  submit  the 
question  to  the  county  court  as  an  original  question,  to  be  de- 
cided by  that  tribunal,  whether  the  act  shall  commence  its 
operation  within  the  county ;  but  it  became  by  its  own  terms 
a  law  in  every  county  not  excepted  by  name  in  the  act.  It 
did  not  then  require  the  county  court  to  do  any  act  in  order 
to  give  it  effect.  But  being  the  law  in  the  county,  and  having 
by  its  provisions  superseded  and  abrogated  the  inconsistent 
provisions  of  the  previous  laws,  the  county  court  is  .  .  . 
empowered  to  suspend  this  act,  and  revive  the  repealed  pro- 
visions of  the  former  act.  When  the  question  is  before  the 
county  court,  for  that  tribunal  to  determine  which  law  shall 
be  in  force,  it  is  urged  before  us  that  the  power  then  to  be  ex- 
ercised by  the  court  is  strictly  legislative  power,  which,  under 
our  constitution,  cannot  be  delegated  to  that  tribunal  or  to 
any  other  body  of  men  in  the  state.  In  the  present  case  the 
question  is  not  presented  in  the  abstract ;  for  the  county  court 
of  Salem  county,  after  the  act  had  been  for  several  months  in 
force  in  that  county,  did,  by  order,  suspend  its  operation ;  and 
during  that  suspension,  the  offense  was  committed  which  is 
the  subject  of  the  present  indictment." 

§  70.  Exceptions  wliicli  have  been  established. —  There  are 
some  valid  delegations  of  legislative  power.  Congress  has 
delegated  it  to  territorial  governments ;  other  legislatures  have 
delegated  it  to  municipalities.  Congress  has  power  to  annul 
territorial  legislation ;  so  state  legislatures  may  annul  munici- 
pal laws ;  but  the  annulling  act  has  only  the  effect  of  a  repeal. 
They  are  valid  until  annulled ;  they  are  not  thus  made  void  from 
the  beginning.  The  delegation  of  legislative  power  to  cities 
is  a  limited  one —  to  make  by-laws  or  ordinances ;  but  still  a 
delegation  of  legislative  power.^  The  delegation  of  power  in 
these  instances  is  to  formulate  and  put  in  force  rules  of  civil 
conduct  of  more  or  less  scope.  The  territorial  grant  extends 
to  "  all  rightful  subjects  of  legislation ; "  it  is  granted  as  broadly 
as  by  constitutions  to  the  state  legislatures.  The  power  to 
legislate  for  the  territories  was  granted  to  congress  by  the  fed- 

1  KeDy  v.  Meeks,  87  Mo.  396 ;  S.  C.  13  Am.  &  Eng.  Corp.  Cas.  220. 


FORMS    OF    I.FGISLATIOX,  ETC 


73 


eral  constitution.^  The  delegation  of  it  to  the  territorial  gov- 
ernment is  a  departure  from  the  general  rule,  but  consistent 
with  the  principles  which  support  the  rule ;  for  it  is  a  conces- 
sion of  the  right  of  self-government  to  those  who  Avould  other- 
Avise  have  no  voice  in  making  the  laws  which  govern  them. 
The  delegation  of  this  power  to  municipalities  is  justified  on 
the  ground  of  presumed  intention  of  the  people,  from  the  im- 
memorial practice  in  this  country  and  in  England  of  creating 
their  local  governments.-  These  departures  decentralize  the 
governing  power ;  the  governed  have  thus  a  direct  voice  in  the 
regulation  of  their  local  affairs. 


»Dred  Scott  v.  Sandford,  19  How. 
393;  National  Bank  v.  County  of 
Yankton,  101  U.  S.  129. 

2  Ti-igaUy  v.  Mayor,  etc.  6  Cold.  383 ; 
Clarke  v.  Rochester,  28  N.  Y.  605; 
Cooley's  Con.  Lim.  143.  This  subject 
is  thus  discussed  by  Battle,  J.,  in 
Thompson  v.  Floyd,  2  Jones'  L.  313 : 
"  Neither  is  it  necessary  for  us  to  con- 
sider the  general  question  whether 
the  general  assembly  can  delegate 
any  portion  of  its  legislative  func- 
tions to  any  man  or  set  of  men  act- 
ing either  in  an  individual  or  corpo- 
rate capacity.  That  it  may  has  been 
too  long  settled  and  acquiesced  m  by 
every  department  of  tV'i  govern- 
ment and  by  the  people  to  be  now 
disputed  or  even  discussed.  The  tax- 
ing power  is  unquestionably  a  legis- 
lative power,  and  one  of  the  highest 
importance,  and  yet  it  has,  ever  since 
the  adoption  of  the  constitution,  been 
partially  delegated  to  the  justices  of 
the  coimty  courts  and  to  eveiy  in- 
corporated city,  town  and  vUlage 
throughout  the  state.  The  power  to 
pass  laws  and  ordinances  for  the  gov- 
ernment of  the  members  of  a  corpo- 
ration is  a  legislative  power,  and  yet 
no  person  has  yet  thought  it  an  in- 
fringement of  the  constitution  for 
the  legislatiu-e  to  confer  the  power  of 
making  by-laws  upon  the  corpora- 
tion itself.    The  power  of  prescribing 


nilos  for  the  orderly  conduct  of  busi- 
ness in  a  court  of  justice  is  a  legis- 
lative power,  and  yet  it  has  often 
been  intnisted  to  the  com-ts  them- 
selves with  the  approbation  of  every- 
body. The  ti'uth  is,  that  in  the  man- 
agement of  all  the  various  and  mi- 
nute details  which  a  highly  civilized 
and  refined  society  requires,  the  gen- 
eral assembly  must  have,  and  are 
imiversaUy  conceded  to  have,  the 
power  to  act  by  means  of  agents, 
which  agents  may  be  either  individu- 
als or  poUtical  bodies,  most  generally 
the  latter.  "Without  such  power  the 
legislature  would  be  an  unwieldy 
body,  incapable  of  accomplishing 
one-half  of  tlie  gi'eat  purposes  for 
wliich  it  was  created. 

"The  act  [in  question]  authorized 
the  coimty  court  to  ascertain  a 
fact,  i.  e.,  whether  a  majority  of 
them  were  in  favor  of  smTender- 
ing  the  jurisdiction  of  having  jury 
ti'ials  in  that  court,  and  in  the 
event  of  the  fact  being  thus  foimd, 
enacted  tliat  thereafter  such  juris- 
diction should  be  taken  from  them 
and  vested  exclusivelj'  in  the  su- 
perior coiu't  of  the  county.  When 
the  fact  was  ascertained  and  the  con- 
sequence ensued,  the  county  coiu-ts 
were  func'ti  officio  —  had  no  furtlier 
power  over  the  matter ;  they  had  not 
in  any  proper  sense  legLslative  power." 


74 


FORMS    OF    LEGISLATION,  ETC. 


§  71.  Effect  of  submitting  laws  or  questions  controlling 
their  eft'ect  to  popular  vote. —  The  legislature  having  the  gen- 
eral power  of  enacting  laws  may  enact  them  in  its  own  form 
when  not  restricted,  and  give  them  such  effect,  to  be  worked 
out  in  such  a  way  and  by  such  means  as  it  chooses  to  prescribe. 
It  may  provide  that  a  law  shall  go  into  effect  at  one  time  or 
another ;  absolutely  or  on  condition ;  upon  certain  terms  or  on 
a  certain  event,  or  without  regard  to  future  events.' 

§  72.  It  is  agreed  by  all  the  authorities  that  an  act  may  be 
vahd  though  its  taking  effect  is  made  to  depend  on  a  future 
contingent  event.  The  case  of  the  Cargo  of  Brig  Aurora  v. 
United  States^  presents  an  instance  of  such  an  act. 

The  result  of  a  popular  vote  is  an  uncertain  event ;  but  there 
is  some  diversity  of  decision  on  the  question  whether  the  tak- 
ing effect  of  a  general  act  can  be  made  to  depend  on  such  a 
contingency.  Yery  few  cases,  however,  have  come  before  the 
courts  involving  that  question.  Barto  v.  Himrod  ^  is  an  early 
one  of  that  limited  number, decided  in  1853.  An  act  "estab- 
lishing free  schools  throughout  the  state  "  was  by  its  terms 


1  Hobart  v.  Supervisors,  17  CaL  23. 
In  Blanding  v.  Buit,  13  Cal.  357, 
Field,  J.,  said  of  a  local  law  provid- 
ing for  its  submission  to  popular  vote : 
■"The  act  in  question  authorizes  the 
issuance  of  the  bonds  upon  the  con- 
dition that  objection  to  their  issuance 
was  not  interposed  in  a  specified  man- 
ner. As  an  emanation  of  the  legisla- 
tive will  it  was  perfect  in  aU  its  parts. 
Tlie  condition  upon  the  exercise  of 
authority  was  imposed  by  the  legis- 
lature itself,  and  involved  no  delega- 
tion of  legislative  authority.  Laws 
may  be  absolute,  dependent  upon  no 
contingency,  or  they  may  be  subject 
to  such  conditions  a?  the  legislature, 
in  its  wisdom,  may  impose.  They 
may  take  effect  only  upon  the  hap- 
pening of  events  which  are  future 
and  uncertain;  and,  among  others, 
the  voluntary  act  of  the  parties  upon 
whom  they  are  designed  to  operate. 
They  are  not  less  perfect  and  com- 
plete when  passed  by  the  legislature. 


though  future  and  contingent  events 
may  determine  whether  or  not  they 
shaU  ever  take  effect.  In  anticipation 
of  invasion  or  insurrection  or  local 
disturbance,  or  other  emergencies  re- 
quiring the  exercise  of  special  powers, 
acts  were  constantly  passed,  and  yet 
no  one  has  ever  questioned  their 
vaHdity  as  laws,  because  dependent 
in  then*  operation  upon  occasions 
wliich  may  never  arise.  So  the  legis- 
lature may  confer  a  power  without 
desiring  to  enforce  its  exercise,  and 
leave  the  question  whether  it  shall  be 
assumed  to  be  determined  by  the 
electors  of  a  particular  district  The 
legislature  may  determine  absolutely 
what  shall  be  done,  or  it  may  author- 
ize the  same  thing  to  be  done  upon 
the  consent  of  tliird  parties.  It  may 
command,  or  it  may  only  permit ;  and 
in  the  latter  case,  as  in  the  former,  its 
acts  have  the  efficacy  of  laws." 

2  7Crancli,383. 

3  8N.  Y.  488. 


FOKMS    OF    LEGISLATION,  ETC.  75 

to  bo  submitted  to  the  qualified  voters  of  tbe  state  to  deter- 
mine "  whetber  tbis  act  sball  or  sball  not  become  a  law."  Tbe 
act  —  not  merely  tbe  provisions  for  submission  —  was  beld 
void,  because  tbere  was  a  delegation  of  legislative  power  to 
tbe  people;  tbey  were  to  decide  wbether  it  sbould  become 
a  law  or  not.  Tbe  act  was  framed  and  duly  passed  by  tbe 
legislature  and  approved.  It  provided  for  a  system  of  free 
scbools.  It  enacted  tbat  it  sbould  be  voted  upon ;  wliat  sbould 
be  tbe  effect  of  a  majority  in  tbe  negative,  and  tbe  effect 
of  a  majority  in  tbe  affirmative.  In  one  event  tbe  system  Avas 
to  be  practically  adopted  —  put  in  operation;  in  the  otber,  it 
was  to  be  abandoned ;  these  effects  were  alternatives  in  the 
act;  it  was  so  written.  If  valid,  the  system  would  go  into 
effect  or  not,  because  the  legislature  had  so  provided.  In  either 
case  tbe  act  would  operate  as  a  law.  Tbe  expressions,  there- 
fore, in  one  event,  that  tbe  act  should  "  become  a  law,"  and  in 
tbe  otber  that  it  should  "  not  become  a  law,"  were  precisely 
equivalent  in  substance  to  "  take  effect "  or  "  not  take  effect." 
And  Euggles,  C.  J.,  said :  "  If,  by  tbe  terms  of  the  act,  it  bad 
been  declared  to  be  law  from  the  time  of  its  passage,  to  take 
effect  in  case  it  sbould  receive  a  majority  of  votes  in  its  favor, 
it  would  nevertheless  have  been  invalid,  because  tbe  result  of 
tbe  popular  vote  upon  the  expediency  of  tbe  law  is  not  such  a 
future  event  as  the  statute  can  be  made  to  take  effect  upon, 
accordino-  to  tbe  meaning-  and  intent  of  the  constitution."  ^ 

1  The  chief  jiostice  amplified  ta  this  man  or  men  to  judge  for  them  in  re- 
language  :  "  The  event  or  change  of  lation  to  its  present  or  f utm-e  expe- 
circumstances  on  which  a  law  may  diency.  They  exercise  that  power 
be  made  to  take  effect  must  be  such  themselves,  and  thus  perform  the 
as,  in  the  judgment  of  the  legislature,  duty  which  the  constitution  imposes 
affects  the  question  of  the  expediency  upon  them. 

of  the  law ;  an  event  on  which  the  "  But  in  the  present  case,  no  such 
expediency  of  the  law  in  the  judg-  event  or  change  of  circumstances  af- 
ment  of  the  law  makers  depends.  On  fecting  the  expediency  of  the  law 
tliis  question  of  expediency  the  legis-  was  expected  to  happen.  The  wis- 
lature  must  exercise  its  own  judg-  dom  or  expediency  of  tlie  free-school 
raent  definitively  and  finally.  When  a  act,  abstiactlj^  considered,  did  not  de- 
law  is  made  to  take  effect  upon  the  peud  on  tlie  vote  of  the  people.  If  it 
happening  of  such  an  event,  the  leg-  was  unwise  or  inexpedient  before 
islature  in  effect  declare  the  law  in-  that  vote  was  taken,  it  was  equally  so 
expedient  if  the  event  should  not  afterwards.  The  event  on  which  the 
happen;  but  expedient  if  it  should  act  was  made  to  take  effect  was  notli- 
Jiappen.     They  appeal  to  no  other  iug  else  than  tlie  vote  of  the  people 


"iQ  FORMS    OF    LEGISLATION,  ETC. 

A  case  arose  in  Iowa  involving  a  similar  question,  and  it 
Tvas  decided  in  the  same  way.^  It  recognized  the  validity  of 
laws  made  to  take  effect  upon  the  happening  of  a  contingent 
event.  On  the  question  whether  the  result  of  a  popular  vote 
on  the  act  going  into  effect  was  an  event  on  which  its  going 
into  effect  could  be  made  to  depend,  the  court  used  this  lan- 
guage :  "  If  the  people  are  to  say  whether  an  act  shall  become 
a  law,  the}''  become,  or  are  put  in  the  place  of,  the  law  makers. 
And  here  is  the  constitutional  objection.  Their  will  is  not  a 
contingency  upon  which  certain  things  are,  or  are  not,  to  be 
done  under  the  law,  but  it  becomes  the  determining  power 
whether  such  shall  be  the  law  or  not.  This  makes  them  the 
'  legislative  authority,'  which,  by  the  constitution,  is  vested 
in  the  senate  and  house  of  representatives,  and  not  in  the 
people."  The  legislature  cannot  refer  a  bill  to  the  people  for 
them  to  make  it  a  law  by  popular  vote.  When  such  vote  is 
caUed  for  to  give  the  force  of  law  to  a  proposal  or  plan  of  a 
law  formulated  by  the  legislature  and  submitted  to  the  people^ 
the  courts  only  declare  a  truism,  on  which  there  is  no  dissent, 
in  holding  acts  so  adopted  unconstitutional.  But  if  an  act  is 
adopted  by  the  legislature  as  a  law,  and,  pursuant  to  its  pro- 
visions, it  is  submitted  to  the  people,  and  on  their  expression 
of  approval  or  disapproval,  as  a  fact  or  event,  the  act  by  its 
terms  does  or  does  not  take  effect,  or  takes  effect  at  one  par- 
ticular date  rather  than  another,  then  apparently  the  only 
question  is  whether  the  legislature  can  pass  a  law  to  take  effect 
on  such  a  contingency.  The  authorities  would  seem  now  to 
have  established  the  doctrine,  though  not  universally,  that  the 

on  the  identical  question  wliich  the  ereign,  but  their  sovereignty  must  be 

constitution  makes  it  tlie  duty  of  the  exercised  in  the  mode  wliich  they 

legislature  itself  to  decide.     The  leg-  have  pointed  out  in  the  constitution,, 

islatvire  has  no  power  to  make  a  stat-  AU  legislative  power  is  derived  from 

ute  dependent  on  such  a  contingency,  the    people ;    but  when    the    people 

because    it    would  be    confiding    to  adopted  the  constitution,  they  sur- 

othei's     that    legislative     discretion  rendered  the  power  of  making  laws 

which  they  are    bovmd  to  exercise  to  the  legislature,  and  imposed  it  upon 

themselves,  and  which  they  cannot  that  body  as  a  dutj\" 

delegate  or  commit  to  any  other  man  i  Santo  v.  State,  2  Iowa,  165.     See 

or  men  to  be  exercised.    They  have  Geebrick  v.  State,  5  id.  491 ;  Weir  v. 

no  more  authority  to  refer  such  a  Cram,  37  id.  649;  State  v.  Weu",  33 

question  to  the  whole  people  than  to  id.  134 
an  individuaL    The  people  are  sov- 


FORMS    OF    LEGISLATION,  ETC.  77 

result  of  a  popular  vote  is  a  contingency  on  wliicli  laws  may 
be  enacted  to  take  effect.' 

In  a  very  late  case  in  Mississippi,-  Campbell,  J.,  delivering 
the  opinion  of  the  court,  said :  "  On  the  question  of  the  right 
to  make  an  act  of  the  legislature  to  depend  for  its  operation  on 
a  future  contingency,  argument  was  exhausted  long  ago,  and 
the  principle  established  by  oft-repeated  examples,  and  by  ad- 
judications in  this  state  and  elsewhere  in  great  numbers,  that 
this  may  be  done  without  violating  the  constitution.  It  is  idle 
to  talk  of  precedent  and  subsecjuent  contingencies  or  condi- 
tions, between  defeating  the  operation  of  an  act  or  putting  it 
in  operation.  There  is  no  such  distinction.  It  is  merely  fan- 
ciful and  deceptive.  It  is  for  the  legislature  in  its  discretion 
to  prescribe  the  future  contingency,  and  it  is  not  an  objection 
on  constitutional  grounds  that  a  popular  vote  is  made  the  con- 
tingency." 

§  73.  Same  —  Cases  maintaining  constitutionality  of  such 
acts. —  Two  cases  arose  in  1854  involving  the  question  whether 
a  provision  of  an  act  was  vaUd  which  referred  to  the  people 
a  choice  of  the  time  when  an  act  should  take  effect.  One  was 
State  V.  Parker.^  By  the  terms  of  the  act  it  was  to  take  effect 
on  the  second  Tuesday  of  March,  1853,  with  a  proviso  "that 
if  a  majority  of  the  ballots  to  be  cast  as  hereinafter  provided 
shall  be  '  no,'  then  this  act  shall  take  effect  on  the  first  Mon- 
day of  December,  A.  D.  1853."  The  act  was  held  vaM.  The 
case  must  have  been  determined  in  the  same  way  had  the  pro- 
viso for  submission  to  the  people  been  held  void,  and  the  act 
otherwise  valid ;  but  the  proviso  was  sustained  upon  thorough 
consideration.  Eedfleld,  C.  J.,  dehvering  tlie  opinion  of  the 
court,  used  this  language:  "It  seems  to  me  that  the  distinc- 
tion attempted  between  the  contingency  of  a  popular  vote  and 
other  future  uncertainties  is  without  all  jubt  foundation  in 
sound  policy  or  sound  reasoning,  and  that  it  has  too  often 

iSee  cases  cited  ante,  g§  71,  72;  uokls,  5  GUm.  1;  Alcorn  v.  Hamer, 

People  V.  Hoffman,  116  111.  587 ;  S.  C.  38  :\Iiss.  653 ;  Gmld  v.  Chicago,  82  lU. 

11  Am.  &  Eng.  Corp.  Cas.  40;  Fotwin  472;  Locke  s  Appeal,  72  Pa.  St.  491 ; 

V.  Jolmson,  108  111.  70 ;  Fell  v.  State,  People  v.  Butte,  4  Mont.  174 ;  State  v. 

42  Md.  71 ;  Mayor,  etc.  v.  Climet,  23  Wilcox,  42  Conn.  304 ;  State  v.  Cooke, 

id.  469 ;  Bull  v.  Read,  13  Gratt  88 ;  24  Minn.  247. 

Biu-gess  V.  Pue,  2  Gill,  11;  People  v.  2  gehulherr  v.  Bordeaux,  64  IMiss.  59. 

Salomon,  51  IlL  37 ;  People  v.  Key-  3  oq  Vt  357. 


78  FORMS    OF   LEGISLATION,  ETC. 

been  made  more  from  necessity  tlian  choice  —  rather  to  escape- 
fi'om  an  overwhelming  analogy  than  from  any  obvious  differ- 
ence in  principle  in  the  two  classes  of  cases ;  for  .  .  .  one 
may  find  any  number  of  cases  in  the  legislation  of  congress 
where  statutes  have  been  made  dependent  upon  the  shifting 
character  of  the  revenue  laws,  or  the  navigation  laws,  or  com- 
mercial rules,  edicts  or  restrictions  of  other  countries." 

The  other  case  is  People  v.  Collins.^  The  act  in  question 
was  passed  in  February,  1853.  It  provided  in  substance  that 
if  a  majority  of  the  votes  were  "  yes,"  the  act  should  "  become 
a  law  of  the  state  from  and  after  the  1st  day  of  December, 
1853,  and  if  a  majority  were  'no,'  then  the  act  should  take 
effect  and  become  a  law  from  and  after  the  1st  day  of  March, 
1870."  The  court  was  equally  divided  on  the  question  of  the 
validity  of  the  act,' 

In  Smith  v.  Janesville,*  the  supreme  court  of  Wisconsin  held 
a  general  act  valid  which  by  its  provisions  was  to  take  effect 
only  after  approval  by  a  majority  of  the  electors  voting  on 
the  subject  at  a  general  election.  The  court  by  Dixon,  C.  J., 
thus  maintains  the  validity  of  acts  referred  to  the  people  for 
approval  or  disapproval :  "  This,"  he  says,  "  is  no  more  than 
providing  that  the  act  should  take  effect  on  the  happening 
of  a  certain  future  contingency,  that  contingency  being  a 
popular  vote  in  its  favor.  Iso  one  doubts  the  general  power 
of  the  legislature  to  make  such  regulations  and  conditions 
as  it  pleases  with  regard  to  the  taking  effect  or  operation  of 
laws.  They  may  be  absolute  or  conditional,  and  contingent ; 
and  if  the  latter,  they  may  take  effect  on  the  happening  of 
any  event  which  is  future  and  uncertain.  Instances  of  this 
kind  of  legislation  are  not  unf  requent.  The  law  of  congress 
suspending  the  writ  of  habeas  corpus  during  the  late  rebellion 
is  one.*  ...  It  being  conceded  that  the  legislature  pos- 
sesses this  general  power,  the  only  question  here  would  seem 
to  be  whether  a  vote  of  the  people  in  favor  of  a  law  is  to  be 
excluded  from  the  number  of  these  future  contingent  events 
upon  which  it  may  be  provided  that  it  shaU  take  effect.  A 
similar  question  was  before  this  court  in  a  late  case  ^  and  was 

1  3  Mich.  343.  "  In  re  Oliver,  17  Wis.  681. 

2  See  People  v.  Bums,  5  Mch.  114        5  State  v.  O'NeiU,  24  Wis.  149. 
a  26  Wis.  291. 


FORMS    OF    LEGISLATION,  ETC. 


79 


very  elaborately  discussed.  We  came  unanimously  to  the  con- 
clusion in  that  case,  that  a  provision  for  a  vote  of  the  electors 
of  the  city  of  Milwaukee  in  favor  of  an  act  of  the  legislature, 
before  it  should  take  effect,  was  a  lawful  contingency,  and 
that  the  act  was  valid.  That  was  a  law  affecting  the  people 
of  Milwaukee  particularly,  while  this  was  one  affecting  the 
people  of  the  whole  state.  There  the  law  was  submitted  to 
the  voters  of  that  city,  and  here  it  was  submitted  to  those  of 
the  state  at  large.  What  is  the  difference  between  the  two 
cases?  It  is  manifest,  on  principle,  that  there  cannot  be  any." 
§  74.  The  operation  and  terms  of  an  act  may  be  made  to 
d3pend  on  foreign  legislation.  A  statute  of  Illinois  provides 
a  general  rate  of  taxation  and  scale  of  fees  to  be  paid  by  for- 
eign insurance  companies  doing  business  in  that  state.  It  also 
provides,  by  way  of  exception,  that  where  the  laws  of  the  state 
to  which  such  foreign  company  belonged  had  imposed,  or 
should  thereafter  impose,  upon  Illinois  insurance  companies 
doino;  business  therein  a  higher  rate  of  taxation  than  is  re- 
quired  by  the  laws  of  Illinois,  then  the  insurance  companies  of 
that  state  doing  business  in  Illinois  should  there  pay  the  higher 
rate  charged  in  the  state  to  which  they  belonged  upon  lUinois 
companies  doing  business  in  such  state.  The  validity  of  this 
statute  came  in  question  in  a  late  case  in  that  state.^  It  was 
objected  to  on  the  ground  that  thereby  the  legislature  had 
abdicated  its  legislative  functions  and  surrendered  them  to  a 
foreign  state.  The  court  denied  the  force  of  this  objection, 
and  by  Mulkey,  J.,  thus  answered  it :  "  It  is  competent  for  the 
legislature  to  pass  a  law  the  ultimate  operation  of  which  may 
by  its  own  terms  be  made  to  depend  upon  some  contingency, 
as  upon  the  affirmative  vote  by  the  electors  of  a  given  district, 
or  upon  any  other  indifferent  contingency  the  legislature  in 
its  wisdom  may  prescribe.  Where  the  contingency  upon  which 
the  ultimate  operation  of  a  law  is  made  to  depend  consists  of 
a  vote  of  the  people,  or  the  action  of  some  foreign  deliberative 
or  legislative  body,  as  is  the  case  here,  it  is  erroneous  to  sup- 
pose the  legislature  in  such  case  abandons  its  own  legislative 
functions,  or  delegates  its  powers  to  the  people  in  the  one  case 
or  to  such  foreign  deliberative  or  legislative  body  in  tlic  other. 
In  either  case  the  law  is  complete  wdien  it  comes  from  the 

1  Home  lus.  Co.  v.  Swigert,  104  111.  Co3 ;  Plioeuix  lus.  Co.  v.  Welch,  29  Kan. 
672 ;  People  v.  Fire  Association,  92  N.  Y.  311. 


80  FOEMS    OF    LEGISLATION,  ETC. 

hands  of  the  legislature,  otherwise  it  would  be  inoperative  and 
void ;  for  we  fully  recognize  the  principle  that  a  law,  properly 
so  called,  cannot  have  a  mere  fragmentary  or  inchoate  exist- 
ence ;  and  even  if  it  could,  neither  the  people  by  a  vote,  nor 
any  other  independent  body,  could  complete  the  unfinished 
work  of  the  legislature,  and  thus  make  it  a  law.  But  while 
this  is  so,  nothing  is  better  settled  than  that  the  operation 
and  even  remedial  character  of  a  perfect  and  complete  law 
may,  by  virtue  of  limitations  contained  in  the  law  itself,  based 
upon  contingent  extraneous  matters,  be  enlarged,  diminished 
or  wholly  defeated.  Such  laws,  though  adopted,  and  abso- 
lutely perfect  in  all  their  parts,  yet  by  their  own  limitations 
they  are  applicable  to  a  hypothetical  condition  of  things  only, 
and  which  may  or  may  not  ever  happen," 

§  75.  Local  laws  dependent  on  popular  vote  generally  held 
valid. —  It  is  now  settled  that  laws,  at  least  of  local  applica- 
tion, may  be  imperative  or  permissive ;  they  may  authorize 
the  people  of  cities,  villages,  townships,  counties,  groups  of 
counties,  or  other  hmited  districts,  not  otherwise  defined  than 
for  the  purposes  of  such  acts,  to  determine  for  themselves 
local  questions  of  pohce,  taxation,  or  any  other  matter  affecting 
their  local  welfare ;  and  the  law  may  be  conditioned  to  carry 
into  effect  their  determination  or  option.^  They  have  thus 
been  authorized  to  decide  by  popular  vote  and  execute  their 
decision  to  contribute  for  the  building  of  railroads  or  other 
like  public  improvements ;  ^  to  divide  a  county  or  organize  a 
new  one;'  to  establish  or  remove  a  county  seat;*  whether 
there  shall  be  license  or  prohibition  of  the  liquor  trafSo;* 

1  Blanding  v.  Buit,  13  CaL  343 ;  Peo-  Hamer,  38  Miss.  652 ;  Slack  v.  Mays- 
pie  Y.  Salomon,  51  IIL  37.  ville,  etc.  R,  R.  Co.  13  B.  Mon.  1. 

2  Starin  v.  Town  of  Genoa,  23  N.  Y.  3  People  v.  Reynolds,  5  Gilm.  1 ; 
439 ;  Clarke  v.  Rochester,  28  N.  Y.  605 ;  People  v.  Burns,  5  Mich.  114. 
Grant  v.  Courter,  24  Barb.  242 ;  Corn-  ■»  Barnes  v.  Supervisors,  51  ]\Iiss.  305 ; 
ing  V.  Greene,  23  id  33 ;  Cincinnati,  Ex  parte  Hill,  40  Ala.  121 ;  Common- 
etc.  R.  R.  Co.  V.  Commissioners,  1  wealth  v.  Painter,  10  Pa.  St  214. 
Ohio  St.  77 ;  Hobart  v.  Supervisors,  5  CaldweU  v.  Barrett,  73  Ga.  604 ; 
17  CaL  23;  Moers  v.  Reading,  21  Pa.  Hammondv.  Haines,  25  Md.  541;  Com- 
St.  189 ;  Bank  of  Rome  v.  Village  of  monwealth  v.  WeUer,  14  Bush,  218 ; 
Rome,  18  N.  Y.  38 ;  Cotton  v.  Leon  State  v.  Cooke,  24  Minn.  247 ;  Fell  v. 
County,  6  Fla.  610 ;  Powers  v.  In-  State,  42  Md.  71 ;  Locke's  Appeal,  7- 
ferior  Ct.  23  Ga.  65 ;  State  v.  O'Neill,  Pa.  St.  491 ;  S.  C.  13  Am.  R  715 ;  Eoouo 
Mayor,  etc.  24  Wis.  149;  Alcorn  ^  t.  State,  12  Tsx  .^j^.  lo4;  Gtoesch  v. 


FORMS   OF    LEGISLATION,  ETC.  81 

■whether  paupers  shall  be  a  county  or  a  township  charge;* 
whether  they  will  have  a  system  of  free  schools ;  ^  whether 
domestic  animals  shall  be  permitted  to  run  at  large.*  The 
people  locally  interested  may  have  the  option  to  accept  or  re- 
ject a  municipal  charter  or  amendatory  acts,*  or  local  pohce 
law.^ 

Acts  giving  such  local  options  have  not  unfrcqucntly  been 
framed  to  secure  it  by  making  a  new  law  go  into  effect  or  not 
according  to  the  result  of  a  popular  vote. 

In  State  v.  Noyes,*^  the  people  in  a  town  meeting  adopted  a 
general  law  to  suppress  bowling  alleys,  and  thereby,  pursuant 
to  its  provisions,  put  it  locally  in  operation. 

In  Mississippi  an  act  for  local  taxation  was,  by  its  terms, 
suspended,  and  ceased  to  have  effect  by  a  protest  of  a  majority 
of  the  legal  voters.' 

By  the  terms  of  a  local  act  of  Wisconsin  it  was  to  be  void 
unless  the  legal  voters  of  the  city  to  which  it  was  applicable 
should  vote  to  accept  it.  It  was  an  act  to  establish  a  board 
of  public  works.  It  was  held  valid ;  that  it  was  a  constitu- 
tional act  to  take  effect  or  go  into  operation  only  upon  a  con- 
tingency provided  in  the  law  itself.^ 

In  a  Yirginia  act  for  local  fi^ee  schools  it  was  provided  that 
the  act  should  not  be  carried  into  effect  untd  a  majority  of  the 
people  of  the  district  should  approve  it.  It  was  sustained  as 
constitutionaL® 

In  Boyd  v.  Bryant,'"  a  general  police  law,  to  take  effect  upon 
local  adoption,  was  held  constitutional. 

State,  42  IncL  547 ;  Schullierr  v.  Bor-  *  IMayor,  etc.  v.  Fiiiney,  54  Ga  317 ; 

deaux,  64  Miss.  59 ;  Commonwealth  Wales  v.  Belcher,  3  Pick.  508 ;  City 

V.  Bennett,  108  INIass.  27 ;  State  v.  Wil-  of  Patersou  v.  Society,  24  N.  J.  L.  385 ; 

cox,  42  Conn.   364 ;    State  v.   Coui-t  People  t.  Butte,  4  Mont  T.  179 ;  S.  C. 

<;om.  Pleas,  36  N.  J.  L.  72;  S.  C.  13  47  Am.  R.  346. 

Am.  R  422 ;  Barnes  v.  Supei-visors,  51  &  Boyd  v.  Bryant,  35  Ark.  69 ;  S.  C. 

Miss.  307 ;    Alcoru  v.  Hamer,  38  id.  37  Am.  R.  6. 

745.  6  30  N.  H.  279. 

1  Town  of  Fox  v.  Town  of  Kendall,  •  Williams  v.  Cammack,  27  Miss. 
97  111.  72.  209. 

2  Bull  V.  Read,  13  Gratt  7a  «  State  v.  O'Neill,  Mayor,  etc.  24  Wis. 

3  Holcomb  V.  Davis,  56  BL  413 ;  Er-  149. 

linger  v.  Boneau,  51  id.  94 ;  Dalby  v.        »  Bull  v.  Read,  13  Gratt  78. 
Wolf,  14  Iowa,  228.  ''^  35  Ark.  69 ;  S.  C.  37  Am.  R  6, 

6 


82  rOKMS    OF    LEGISLATION,  ETC. 

Such  cases  as  Kice  v.  Foster,^  Parker  v.  Commoiiwealtli,^ 
Ex  parte  Wall,^  and  Maize  v.  State,*  are  now  exceptional,  and 
are  simply  out  of  harmony  with  the  law  as  generally  held 
throughout  the  country. 

On  the  whole  it  may  perhaps  be  considered  a  sound  conclu- 
sion, and  I  think  it  is  supported  by  a  preponderance  of  author- 
ity, that  whether  an  act  is  general  or  local  the  legislature  may 
in  their  wisdom  take  into  consideration  the  wishes  of  the  pub- 
lic, and  determine  not  to  impose  a  law  on  an  unwilling  or 
non-consenting  people.  Having  the  power  to  make  their  laws 
conditional  to  take  effect  only  on  the  happening  of  contingent 
events,  what  the  event  shall  be  on  which  the  taking  effect  of 
an  act  shall  depend  is  not  a  judicial  question,  but  wholly  and 
absolutely  within  the  discretion  of  the  legislature,  like  the 
emergency  which  will  induce  them  to  make  an  act  take  im- 
mediate effect,  and  that  the  result  of  a  popular  vote  is  a  con- 
tingent event  within  that  discretion. 

1 4  HaiT.  479.  3  43  CaL  279. 

2  6  Pa   St  507,  now  overruled  in        <  4    Ind.    343,    substantially    over- 
Locke's  Appeal,  72  id,  491.  ruled  by  Groesch  v.  State,  42  Ind.  547. 


CHAPTER  lY. 


CONSTITUTIONAL  REQUIREMENT  THAT  NO  ACT  EMBRACE  MORE 
THAN  ONE  SUBJECT  AND  THAT  IT  BE  EXPRESSED  IN  THE 
TITLK 


§  76.  Substantial  agreement  of  con- 
stitutional provisions. 

79.  Regarded  as  mandatory. 

82.  Liberally  construed  to  sustain 
legislation. 

85.  Provisions  must  be  germane. 

86.  Requirement  to  state  subject 

in  title. 

87.  Provisions  can  have  no  greater 

scope  than  subject  in  the  bill. 

88.  Title  need  not  index  details  of 

act. 

89.  "  Etc."  may  increase  scope  of 

title. 


3  90.  Title  too  general 
91.  Title  should  accompany  bill  in 

process  of  passage. 
93.  What  general  title  includes. 
98.  Acts  which  relate  to  pluraUty 

of  similar  subjects. 

101.  Title  and  subject  of  aniend- 

atoiy    and     supplementaiy 
acts. 

102.  Provisions  not  within  subject 

in  the  title. 

103.  Effect  of  act  containing  more 

than  one  subject 


§  76.  Substantial  agreement  of  constitutional  proyisions — 
Exceptions. —  In  the  constitutions  of  a  large  majority  of  the 
states  are  provisions  relating  to  the  title  and  singleness  of  the 
subject-matter  of  legislative  acts.  It  is  not  uniformly  ex- 
pressed in  the  same  words,  but  it  is  in  substance  the  same  — 
that  no  law  shall  embrace  more  than  one  subject  which  shall 
be  expressed  in  the  title.^ 


1  Alabama  — 1865:  Art  4,  sec.  2. 
Each  law  shall  embrace  but  one 
subject  which  shall  be  described 
in  the  title. 
1868:  Each  law  shall  contain  but 
one  subject  which  shall  be  clearly 
expressed  in  tlie  titla  Art  4, 
sec.  2. 
1875,  adds :  Except  general  appro- 
priation bills,  general  revenue 
bUl,  and  bills  adopting  a  code, 
digest  or  revision  of  statutes. 

California  — 1849:  Art  4,  sec.  25. 
Every  law  enacted  by  the  legis- 
lature shall  express  but  one  ob- 


ject, and  that  shall  be  expressed 
in  the  title. 

Colorado  —  No  bill,  except  general 
appropriation  biUs,  shall  be  passed 
containing  more  than  one  sub- 
ject wliich  shall  be  clearly  ex- 
pressed in  its  title;  but  if  any 
subject  sliaU  be  embraced  in  any 
act  which  shall  not  be  expressed 
in  tlie  title,  such  act  shall  be 
void  only  as  to  so  mucli  thereof 
as  shall  not  be  so  expressed. 

Florida— 1868:  Art  4,  sec.  14. 
Each  law  enacted  in  the  legis- 
lature shall  embrace  but  one  sub- 


84 


CONSTITUTIONAL    REQUIREMENT,  ETC. 


In  the  constitutions  of  New  York,  "Wisconsin,  and  in  the 
Illinois  constitution  of  ISiS,  the  provision  is  confined  to  private 


ject,  and  matter  properly  con- 
nected therewith,  which  subject 
shall  be  briefly  expressed  in  the 
title. 

Cccorgia  —  18G5:  Nor  shall  any  law 
or  oi'dinance  pass  which  refers 
to  more  than  one  subject-matter 
or  contains  matter  different  from 
what  is  expressed  in  the  title 
thereof.    Art.  2,  sec.  4. 

Illinois  —  1848:  Art.  3,  sec.  23.  No 
private  or  local  law  which  may 
be  passed  by  the  general  assem- 
bly shall  embrace  more  than  one 
subject,  and  that  shaU  be  ex- 
pressed in  the  title. 
1870:  Art.  4,  sec.  18.  No  act  here- 
after passed  shall  embrace  more 
than  one  subject,  and  that  shall 
be  expressed  in  the  title ;  but  if 
any  subject  shall  be  embraced  in 
an  act  which  shall  not  be  ex- 
pressed in  the  title,  etc.  (as  in 
Colorado). 

ludiaiiii  — 1851:  Art.  4,  sec.  19. 
Every  act  shall  embrace  but  one 
subject  and  matters  properly 
connected  therewith,  which  sub- 
ject shall  be  expressed  in  the 
title ;  but  if  any  subject  shall  be 
embraced  in  an  act,  etc.  (as  in 
Colorado  constitution). 

Iowa— 184G:  Art.  3,  sea  26.    Same 
as  in  Indiana. 
1857:  Art.  3,  sec.  29.    Same  as  in 
Indiana. 

Kansas  — 1855:  Art.  4,  sec.  14.  Eveiy 
act  shall  contain  but  one  subject, 
which  shall  be  clearly  expressed 
in  its  title. 
1857:  Art.  5,  sec.  20.  Every  law 
enacted  by  the  legislature  shall 
embrace  but  one  subject,  and 
that  shall  be  expressed  in  its 
title,  and  any  extraneous  matter 
introduced  in  a  bill  which  shall 
pass  shall  be  void. 


1859:  Art.  2,  sec.  16.  No  bill  shall 
contain  more  than  one  subject, 
which  shaU  be  clearly  expressed 
in  its  title. 

Kentucky  —  1850:  No  law  shall  re- 
late to  more  than  one  subject, 
and  that  shall  be  expressed  in  the 
title.    Art.  2,  sec.  37. 

Louisiana  —  Every  law  enacted  by 
the  legislattu-e  shall  embrace  but 
one  object,  and  that  shaU  be  ex- 
pressed in  the  title. 
1852:  Art.  115. 
1864:  Art.  118. 

18G8:  Art.  114.  Every  law  shall 
express  its  object  or  objects  in 
its  title. 

Maryland  — 1851:  Art  3,  sec.  17. 
Eveiy  law  enacted  by  the  legis- 
lature shall  embrace  but  one  sub- 
ject, and  that  shall  be  described 
in  the  title. 
18()4:  Art.  3,  sec.  28 ;  art.  3,  sec.  29. 

Micliigan  — 1850:  Art.  4,  sec.  20. 
No  law  shall  embrace  more  than 
one  object,  wiiich  shall  be  ex- 
pressed in  its  title. 

Minnesota  — 1857:  Art.  4,  sec.  27. 
No  law  shall  embrace  more  than 
one  subject,  which  shall  be  ex- 
pressed in  its  title. 

Missouri  —  18(>5:  Art.  4,  sec.  32.  No 
law  enacted  by  the  general  as- 
sembly shall  relate  to  more  than 
one  subject,  and  that  shall  be  ex- 
jjressed  in  the  title;  but  if  any 
subject  embraced  in  an  act  be 
not  expressed  in  the  title,  such 
act  shall  be  void  only  as  to  so 
much  thereof  as  is  not  so  ex- 
pressed. State  V.  Miller,  45  Mo. 
495. 

Nevada  — 1864:  Art.  4,  sec.  17. 
Each  law  enacted  by  the  legisla- 
ture shall  embrace  but  one  sub- 
ject and  matter  properly  con- 
nected therewith,  wliich  subject 


CONSTITUTIONAL   REQUIREMENT,  ETC. 


8» 


and  local  laws.     It  will  be  noticed  that  in  several  tlie  injunc- 
tion is  against  embracing  more  than  one  "  object "  in  a  bill. 


shall  be  briefly  expressed  in  the 
title. 

New  Jersey  — 1844:  Art  4,  sec.  7. 
To  avoid  improper  influences 
which  may  result  from  intermix- 
ing ia  one  and  the  same  act  such 
things  as  have  no  proper  relation 
to  each  other,  eveiy  law  shall 
embrace  but  one  object,  and 
that  shall  be  expressed  in  the 
title. 

New  York  —  184G:  Ai-t  3,  sec.  16. 
No  private  or  local  bill  wliich 
may  be  passed  by  the  legislatm-e 
shall  embrace  more  than  one 
subject,  and  that  shall  be  ex- 
pressed in  the  title. 

Ohio  — 1851:  Art  2,  sec.  16.  No 
bill  shall  contain  more  tlian  one 
subject,  which  shall  be  clearly  ex- 
pressed in  its  title. 

Oregon  — 1857:  Art  4,  sec.  20. 
Every  act  shall  embrace  but  one 
subject  and  matters  properly  con- 
nected there%vith,  wliich  subject 
shall  be  expressed  in  the  titla 
But  if  any  subject  shall  be  em- 
braced in  an  act  which  sliall  not 
be  expressed  in  the  title,  such  act 
shall  be  void  only  as  to  so  much 
thereof  as  shall  not  be  expressed 
in  the  title, 

Penusylvania  —  Added  in  1864  by 
amendment  to  constitution  of 
1838,  art  2,  sec.  3.  No  bill  shaU 
be  passed  by  the  legislature  con- 
taining more  than  one  subject 
which  shall  be  expressed  in  the 
title,  except  appropriation  bills. 
1873:  Art  3,  sec.  3.  No  bill,  ex- 
cept general  appropriation  biUs, 
shall  be  passed  containing  more 
than  one  subject  which  shall  be 
clearly  expressed  in  its  title. 

South  Carolina  —  Everj^  act  or  reso- 
lution having  the  force  of  law 


shaU  relate  to  but  one  subject^ 
and  that  shall  be  expressed  in  the 
title. 

1868:  Art  2,  sec.  20. 
Texas  —  1845:  Art  7,  sec.  24.  Every 
law  enacted  by  the  legislature 
shall  embrace  but  one  object, 
and  that  shall  be  expressed  in  the 
title. 

18()(>:  Art  7,  sec.  24 

1868:  Art  12,  sec.  17. 

1876:  Art  3,  sec.  35.  No  bill  (ex- 
cept general  appropriation  bills 
wliich  may  embrace  the  various 
subjects  and  accounts  for  and  on 
account  of  which  moneys  are  ap- 
propriated) shall  contain  more 
than  one  subject,  which  shall  be 
expressed  in  its  title.  But  if  any 
subject  shall  be  embraced  in  an 
act  which  shall  not  be  expressed 
in  the  title,  such  act  shall  be  void 
only  as  to  so  much  thereof  as  shall 
not  be  so  expressed. 
Tennessee  — 1870:  Art  2,  sec.  17. 
No  bill  shall  become  a  law  wluch 
embraces  more  than  one  subject ; 
that  subject  to  be  expressed  in 
the  titla 
Virginia  — 1850:  Art  4,  sec.  16.  No 
law  shall  embrace  more  than  one 
object,  which  shaU  be  expressed 
in  its  title. 

1864:  Art  4,  sec.  16. 

1870:  Ai-t  5,  sec.  15. 
West  Virginia  —  1861-1863:  Same 
as  in  Virginia. 

1872:  Art  6,  sec.  30.  No  act  here- 
after passed  shall  embrace  more 
than  one  object  and  that  shall 
be  expressed  in  the  title.  But  if 
any  object  shall  be  embraced  in 
an  act  wliich  is  not  so  expressed, 
the  act  shall  be  void  only  as  to  so 
much  thereof  as  shall  not  be  so 
expressed. 


S6  CONSTITUTIONAL    EEQUIKEMENT,  ETC. 

In  many  instances  the  subject  o^  object  is  required  to  be 
*' cZm;'/^  "  and  in  one  "  JW^y  "  expressed  in  the  title.  The 
provision  that  only  one  subject  shall  be  embraced  in  an  act  is 
in  some  states  qualified  by  adding  "  and  matters  properly  con- 
nected therewith." 

§  77.  The  former  constitution  of  Georgia  merely  inhibited 
the  passage  of  any  law  containing  matter  different  from  that 
expressed  in  its  titlQ.  Under  it,  according  to  the  rulings  and 
practice  in  that  state,  when  there  was  added  to  the  words  in 
the  title  the  phrase  "  and  for  other  purposes,"  it  gave  an  un- 
lunited  capacity  to  the  body  of  the  act.^  The  present  consti- 
tution, however,  prohibits  the  passage  of  any  law  which  refers 
to  more  than  one  subject-matter  or  contains  matter  different 
from  what  is  expressed  in  the  title. 

§  78.  The  miscliief  iuteuded  to  be  remedied  —  The  pur- 
pose of  these  restrictive  provisions. —  In  the  construction 
and  application  of  this  constitutional  restriction  the  courts 
have  kept  steadily  in  view  the  correction  of  the  mischief 
against  which  it  was  aimed.  The  object  is  to  prevent  the  prac- 
tice, which  was  common  in  aU  legislative  bodies  where  no  such 
restriction  existed,  of  embracing  in  the  same  bill  incongruous 
matters  having  no  relation  to  each  other,  or  to  the  subject 
specified  in  the  title,  by  which  measures  were  often  adopted 
without  attracting  attention.^  Such  distinct  subjects  repre- 
sented diverse  interests,  and  were  combined  in  order  to  unite 
the  members  of  the  legislature  who  favored  either  in  support 
of  all.^  These  combinations  were  corruptive  of  the  legislature 
and  dan:gerous  to  the  state.^  Such  omnibus  bills  sometimes 
included  more  than  a  hundred  sections  on  as  many  different 
subjects,  with  a  title  appropriate  to  the  first  section,  "  and  for 
other  purposes."  ^ 

The  failure  to  indicate  in  the  title  of  the  bill  the  object  in- 

Wisconsin  — 1848-:  Art.  4.  sec.  18.  low,  49  Ga.  241 ;  Black  v.  Cohen,  53 

No  private  or  local  biU,  which  Ga.  626. 

may  be  passed  by  the  legislature,  ^  Louisiana  v.  Pilsbury,  105  U.  S. 

shall  embrace    more    than   one  278. 

subject,  and  that   shall  be   ex-  3  Shields  v.  Bennett,  8  W.  Va.  83 ; 

pressed  in  the  title.  Town  of  FishkiU  v.  F.  &  B.  Co.  23 

1  Martin  v.  Broach,  6  Ga.  21 ;  S.  C.  Barb.  634 

50  Am.  Dec.  306 ;  Mayor,  etc.  v.  State,  ^  People  v.  Mahaney,  13  Mich.  494 

4  Ga  26 ;  Board  of  Education  v.  Bar-  »  Yeager  v.  Weaver,  64  Pa  St  425. 


CONSTITUTIONAL   REQUIREMENT,  ETC.  87 

tended  to  be  accomplished  15y  the  legislation  often  resulted  in 
members  voting  ignorantly  for  measures  which  they  would 
not  knowingly  have  approved.  And  not  only  were  legislators 
thus  misled,  but  the  public  also ;  so  that  legislative  provisions 
were  stealthily  pushed  through  in  the  closing  hours  of  a  session 
which,  having  no  merit  to  commend  them,  would  have  been 
made  odious  by  popular  discussion  and  remonstrance  if  their 
pendency  had  been  seasonably  announced.  'The  constitutional 
clause  under  discussion  is  intended  to  correct  these  evils ;  to 
prevent  such  corrupting  aggregations  of  incongruous  measures 
by  confining  each  act  to  one  subject  or  object ;  to  prevent  sur- 
prise and  inadvertence  by  requbing  that  subject  or  object  to 
be  expressed  in  the  title.^ 

§  J9.  Regarded  as  mandatory. —  The  efficiency  of  this  con- 
stitutional remedy  to  cure  the  evil  and  mischief  which  has 
been  pointed  out  depends  on  judicial  enforcement ;  on  this 
-constitutional  injunction  being  regarded  as  mandatory,  and 
•compliance  with  it  essential  to  the  validity  of  legislation.  The 
mischief  existed  notwithstanding  the  sworn  official  obUgation 
-of  legislators ;  it  might  be  expected  to  continue  notwithstand- 
ing that  that  obligation  is  formulated  and  emphasized  in  this 
■constitutional  injunction,  if  it  be  construed  as  addressed  exclu- 
sively to  them,  and  only  directory.  It  would,  in  a  general 
sense,  be  a  dangerous  doctrine  to  announce  that  any  of  the 

1  Davis  V.  State,  7  MtL  160 ;  Parkin-  9  Baxter,  584 ;  Eyerson  v.  Utley,  16 

son  V.  State,  14  Md,  184 ;  Slack  v.  Ja-  Midi.  269 ;  Smith  v.  Commonwealth, 

cob,  8  W.  Va.  640 ;  State  v.  Comity  8  Bush,  108 ;  People  v.  Inst,  of  Prot 

Judge,  2  Iowa,   282;    Brieswick    v.  Deaconesses,  71   III.   229;    White  v. 

Mayor,  51  Ga  639 ;  State  ex  rel.  Att'y  Citj^  of  Lincoln,  5  Neb.  505 ;  Missis- 

Gen'l  V.  Ranson,  73  Mo.  78;    Mont-  sipj^i,  etc.   Co.  v.  Prince,  10  Am.  & 

gomeiy,  etc.   Asso.  v.   Robinson,  69  Eng.  Cor.  Cas.  891 ;  Sun  Mut.  Ins.  Co. 

Ala  413;   McGrath  v.  State,  46  Md.  v.  Mayor,  8  N.  Y.  241 ;  S.  C.  5  Sandf. 

■ess ;  People  v.  Mahaney,  13  Midi.  494 ;  10 ;  To^vn  of  Fislikill  v.  F.  &  B.  Co. 

Gi-ubbs  V.  State,  24  Ind.  295 ;  Harris  22  Barb.  634 ;  Robmson  v.  Skipwortli, 

V.  People,  59  N.  Y.  602;   People  v.  23  Ind.  312 ;  City  of  St  Louis  v.  Teif el, 

Denaliy,  20  Midi.  349 ;  Durkee  v.  City  42  Mo.  578 ;  Dorsey's  Appeal,  72  Pa, 

of  Janesville,  26  Wis.  697 ;  People  v.  192 ;  Walker  v.  Caldwell,  4  La  Ann. 

^Fleming,  7  Colo.  230 ;  Stein  v.  Leeper,  298 ;  State  v.  To\\ti  of  Union,  33  N.  J.  L. 

78  Ala  517 :  County  Comm.  v.  Meek-  350 ;  Gilford  v.  New  Jei-sey  R  R  Co. 

ins,  50  Md.  39 ;  KeUer  v.  State,  11  Md.  2  Stockt  173 ;  Tadlock  v.  Eccles,  20 

•531 ;  County  Commissioners  v.  Frank-  Tex.  782 ;  Yeager  v.  Weaver,  64  Pa 

liu  R  R  Co.  34  Md.  163 ;  Mayor,  etc.  St.  427 ;  State  v.  Silver,  9  Nev.  227. 
•v.  State,  30  Md,  118 ;  State  v.  Lasater, 


88  CONSTITUTIONAL    KEQUIKEMENT,  ETC. 

provisions  of  the  constitution  may  be  obeyed  or  disregarded 
at  the  mere  will  or  pleasure  of  the  legislature,  unless  it  is  clear 
beyond  all  question  that  such  was  the  intention  of  the  framers 
of  that  instrument.  It  would  seem  to  be  a  lowering  of  the 
proper  dignity  of  the  fundamental  law  to  say  that  it  descends 
to  prescribing  rules  of  order  in  unessential  matters  which  may 
be  followed  or  disregarded  at  pleasure.^  The  fact  is  this :  that 
whatever  constitutional  provision  can  be  looked  upon  as  a  di- 
rectory merely  is  very  likely  to  be  treated  by  the  legislature 
as  if  it  was  devoid  of  moral  obligation,  and  to  be  therefore 
habitually  disregarded.- 

§  80.  The  provision  has  been  held  mandatory  in  Tennessee 
on  its  particular  language.  Thus,  in  Cannon  v.  Mathes,^  Nich- 
olson, C.  J.,  called  attention  to  the  words :  "  No  bill  shall  be- 
come a  law  which  embraces  more  than  one  subject."  "  This,"  he 
said,  "  is  a  direct,  positive  and  imperative  limitation  upon  the 
power  of  the  legislature.  It  matters  not  that  a  bill  has  passed 
through  three  readings  in  each  house  on  different  days,  and 
has  received  the  approval  of  the  governor,  still  it  is  not  a  law 
of  the  state  if  it  embraces  more  than  one  subject."  So,  in 
Central  &  G.  R.  Co.  v.  People,^  the  last  clause  in  the  provision,, 
as  adopted  in  Colorado  and  several  other  states,  was  held  de- 
cisive. That  clause  is,  "  but  if  any  subject  shall  be  embraced 
in  any  act  which  shall  not  be  expressed  in  the  title,  such  act 
shall  be  void  only  as  to  so  much  thereof  as  shall  not  be  so  ex- 
pressed." ^  But  in  aU  the  states  having  such  a  restrictive  pro- 
vision in  which  the  question  has  arisen,  except  Ohio,"  and 
California  under  her  former  constitution,'  the  command  has 
been  held  to  be  mandatory.^ 

1  Commissioners  of  Sedgvtdck Ca  V.  '"Washington  v.  Page,  4  CaL  388; 
Bailey,  13  Kan.  607.  Pierpont  v.  Crouch,  10  Cal.  315. 

2  Cooley,  Const.  Lim.  *78.  « People   v.  Hills,    35  N.  Y.  449 ; 

3  8  Heisk.  504  Gaskin  v.  Meek,  42  N.  Y.  186 ;  Peo- 

4  5  Colo.  39.  pie  v.  Allen,  42  N.  Y.  378 ;  People  v. 

5  Art  5,  sec.  21.  Lawrence,  36  Barb.   185 ;   Huber  v. 

6  Miller  v.  State,  3  Ohio  St  475 ;  People,  49  N.  Y.  132 ;  People  v.  Parks,. 
Pim  V.  Nicholson,  6  Ohio  St  176;  58  CaL  635;  People  v.  Fleming,  T 
Steamboat  Northern  Indiana  v.  MU-  Colo.  230 ;  Centi-al  &  G.  R.  Co.  v.  Peo- 
liken,  7  Ohio  St  383 ;  Lehman  v.  pie,  5  Colo.  39 ;  S.  C.  9  Am  &  Eng.  R. 
McBride,  15  Ohio  St  573 ;  State  v.  R  Cas.  546 ;  Montgomery,  etc.  Asso. 
Covington,  etc.  29  Ohio  St  1C2 ;  Oshe  v.  Robinson,  69  Ala  413 ;  Supei-risoi-s- 
V.  State,  37  Oliio  St  500.  v.  Heenan,  2  Minn.  330 ;  Caimon  t. 


CONSTITUTIONAL    REQUIREMENT,  ETC. 


89- 


§  81.  The  courts  possess  and  exercise  the  same  power  to 
expound  and  apply  the  provision  of  the  constitution  under 
consideration  as  they  do  to  construe  and  enforce  any  other. 
It  is  as  fatal  to  an  act  to  be  framed  contrary  to  the  constitu- 
tion in  its  title  and  by  embracing  a  plurality  of  subjects,  as  it 
would  be  to  insert  provisions  to  operate  contrary  to  its  other 
limitations.^ 

The  courts  of  Ohio,  in  holding  this  constitutional  clause  di- 
rectory, are  not  to  be  understood  as  conceding  that  it  is  with- 
out obligatory  force.  On  the  contrary  it  is  declared  to  be  a 
direction  to  the  general  assembly  which  each  member  is  under 
the  solemn  obligation  of  his  oath  to  observe  and  obey.  To  the 
legislature  it  is  of  equal  obligation  with  a  mandatory  provis- 
ion, but  a  failure  to  observe  it  does  not  render  the  act  void. 
It  is  there  a  rule  of  decision  based  on  grounds  of  expediency .^ 

The  present  constitution  of  Cahfornia,  besides  adding  to  the 
clause  as  it  stood  in  the  former  constitution,  another  direction 
implying  that  provisions  in  an  act  on  a  subject  not  expressed 
in  the  title  are  void,  contains  a  general  provision  that  "the 
provisions  of  this  constitution  are  mandatory  and  prohibitory, 
unless  by  express  words  they  are  declared  to  be  otherwise."  ^ 

The  constitutional  pi'ovision  under  consideration  does  not 
apply  to  statutes  lawfully  enacted  before  its  adoption,'*  nor  to 
city  ordinances,  unless  the  constitution  is  broad  enough  in 
terms  to  embrace  municipal  legislation,  or  the  same  require- 
ment is  enacted  in  the  charter.' 

§  82.  Liberally  construed  to  sustain  legislation  not  within 
the  mischief. —  The  courts  with  great  unanimity  enforce  this 
constitutional  restriction  in  all  cases  falling  within  the  mis- 

Hemphill,    7    Tex.   184;    Cannon  v.  383;     Pennington    v.    Woolfolk,    79 

Mathes,  8  Heisk.  504 ;  State  v.  McCann,  Ky.  13. 

4  Lea,  1 ;  Sliields  v.  Bennett,  8  W.  Va,        i  Id. ;  Davis  v.  State,  7  Md.  151 ;  S.  C 

85 ;  Phillips  v.  Covington,  etc.  Co.  2  61  Am.  Dec.  331,  and  reporter's  note. 

Met   (K}%)    221;    Commissioners    of  340. 

Sedgwick  Co.  V.  Bailey,  13  Kan.  607 ;        2  state  v.  Covington,  29  Ohio  St 

Weaver   v.    Lapsley,    43   Ala.    224;  102. 

Union  Passenger  R'y  Co.'s  Appeal,        3  Const  1879,  art  1,  sec.  22. 

81*  Pa,  St  91 ;  State  v.  Miller,  45  Mo.        <  Rogers  v.  Wmdoes,  48  Mich.  628. 

495 ;  Tadlock  v.  Eccles,  20  Tex.  782 ;        5  Baumgai-tner  v.  Hasty,  100  Ind.. 

City  of  San  Antonio  v.   Gould,   34  575. 

Tex.  49 ;  State  v,  McCracken,  42  Tex. 


^0  CONSTITUTIONAL   EEQUIEEMENT,  ETC. 

-chiefs  intended  thereby  to  be  remedied.  And,  in  cases  not 
within  those  mischiefs,  they  construe  it  Uberally  to  give  con- 
venient and  necessary  freedom,  so  far  as  is  compatible  with 
the  remedial  measure,  to  the  law-making  power.  They  agree 
that  whilst  it  is  necessary  to  so  expound  this  provision  as  to 
prevent  the  evils  it  was  designed  to  remove,  it  is  no  less  de- 
sirable to  avoid  the  opposite  extreme,  the  necessary  effect  of 
which  would  be  to  embarrass  the  legislature  in  the  legitimate 
exercise  of  its  powers,  by  compelling  a  needless  multiphcation 
of  separate  acts  as  well  as  to  introduce  a  perplexing  uncer- 
tainty as  to  the  validity  of  many  important  laws  which  must 
be  daily  acted  upon.'  To  facilitate  proper  legislation,  it  will 
not  be  interpreted  in  a  strict,  narrow  or  technical  sense,^  but 
reasonably.* 

In  State  v.  Miller  *  the  court  say :  "  The  courts  in  all  the  states 
where  a  like  or  similar  provision  exists  have  given  a  very  hb- 
eral  interpretation,  and  have  endeavored  to  construe  it  so  as 
not  to  limit  and  cripple  legislative  enactment  any  further  than 
what  was  necessary  by  the  absolute  requhement  of  the  law."  * 

The  supreme  court  of  Louisiana,  in  commenting  on  an  argu- 
ment of  counsel  which  demanded  a  strict  construction,  uses 
this  language :  "  We  think  the  argument  invokes  an  interpre- 
tation too  rigorous  and  technical.  If  in  applying  it  we  should 
foUow  the  rules  of  a  nice  and  fastidious  verbal  criticism,  we 
should  often  frustrate  the  action  of  the  legislature  without 
fulfilling  the  intention  of  the  framers  of  the  constitution."  ® 
The  intent  of  this  provision  of  the  constitution  is  to  prevent 
the  union  in  one  act  of  incongruous  matter,  and  of  objects 
having  no  connection  or  relation ;  to  require  singleness  of  sub- 
ject-matter, and  an  indicative  or  suggestive  title  to  prevent 

1  Parkinson    v.  State,  14  Md.  184,  269 ;  State  ex  rel.  Atty.  Gen.  v.  Ran- 

194 ;    People   v.  JMahaney,  13  Midi,  son,  73  Mo.  78 ;  Slack  v.  Jacob,  8  W. 

481,  495 ;  City  of  St.  Louis  v.  Tiefel,  Va,  640 ;  State  v.  Totvti  of  Union,  33 

42  Mo.  578 ;  Montgomery  Mut.  B.  &  L.  N.  J.  L.  350 ;  Shields  v.  Bennett,  8  W. 

Asso.  V.  Robinson,  69  Ala.  413 ;  In  re  Va.  83. 

Wakker,  3  Barb.  162 ;  Sharp  v.  Mayor,  2  MunicipaUty  No.  3  v.  IMichoud,  6 

^tc.  31  Barb.  572 ;  People  v.  Ins.  Co.  La  Ann.  605. 

19  Mich.  392;  Atkinson  v._  Duffy,  16  SRyerson  v.  Utley,16  Midi.  269. 

Minn.  49 ;  State  v.  Lasater,  9  Baxt.  *  45  Mo.  497. 

584 ;  Smith  V.  Commonwealth,  8  Bush,  ^  Cooley's  Const.  Lim.  176. 

108 ;  Mayor,  etc.  of  Annapolis  v.  State,  6  Succession  of  Lanzetti,  9  La.  Ann. 

-30  Md.  1 12  ;  Ryerson  v.  Utley,  16  Midi.  333. 


CONSTITUTIONAL    UKQLIKKJIKNT,   K'iC.  Dl 

surprise  by  having  matter  of  one  nature  embraced  in  a  1)111, 
while  its  title  is  silent  or  expresses  another.  But  there  must 
be  some  limit  to  the  division  of  matter  into  separate  bills  or 
acts.^  A  reasonable  construction  permits  the  single  subject 
to  be  .comprehensive  enough  for  practical  purposes,  for  it  only 
necessitates  the  separation  of  entireties,  and  great  latitude  is 
allowed  in  stating  the  subject  in  the  title. 

But  a  disregard  of  the  constitutional  restriction  even  in  an 
otherwise  meritorious  biU  will  be  fatal.^  The  departure,  how- 
ever, must  be  plain  and  manifest,  and  all  doubts  will  be  re- 
solved in  favor  of  the  law.'  The  objections  should  be  grave, 
and  the  conflict  between  the  statute  and  the  constitution  pal- 
pable, before  the  judiciary  should  disregard  a  legislative  en- 
actment upon  the  sole  ground  that  it  embraced  more  than  one 
subject ,  or,  when  it  contains  but  one  subject,  on  the  ground 
that  it  is  not  sufliciently  expressed  in  the  title.*  Legislation 
is  also  liberally  construed  to  render  it,  in  proper  cases,  con- 
formable with  this  feature  of  the  fundamental  law.  This  lib- 
erality will  be  fully  illustrated  in  the  ensuing  sections. 

§  S3.  The  subject  or  object  of  a  statute. —  The  subject  of 
a  statute  is  the  matter  of  public  or  private  concern  in  respect 
to  which  its  provisions  are  enacted ;  its  object  is  its  general 
aim  or  purpose.^  The  constitutional  clause  under  considera- 
tion, m  some  instances,  is  that  no  law  shall  embrace  more  than 
■one  suhject;  in  others,  no  more  than  one  object.  These  words 
are  not  strictly  synonymous ;  but  the  provisions  thus  verbally 
varying  have  received  substantially  the  same  construction. 
The  decisions  made  in  New  Jersey,  Michigan  and  "West  Vir- 
ginia are  freely  quoted  in  the  other  states ;  practically  the  same 
rule  or  principle  of  construction  is  acknowledged,  and  no  dis- 
tinctions have  been  established  on  the  use  of  one  of  these 
words  instead  of  the  other,  though  allusion  has  sometimes 
been  made  to  this  difference  of  terms.'*  The  particular  object 
of  a  statute  cannot  be  expressed  without  also  expressing  the 

1  State  V.  County  Judge,  2  Iowa,  *  Montclair  v.  RamsJell,  107  U.  S. 
280.  155. 

2  People  V.  Denahy,  20  IMich.  349 ;  •^  :Matter  of  Mayer,  50  N.  Y.  507 ; 
State  V.  Tucker,  46  Ind.  355.  Doi-sey's  Appeal,  72  Pa,  St  192. 

3  State  V.  County  Judge,  2  Iowa,  « Shields  v.  Bennett,  8  W.  Va,  83 ; 
282.  State  v.  Cassidy,  22  Minn.  325. 


92  CONSTITUTIONAL    REQUIKEMENT,  ETC. 

subject  of  it.  Thus  in  an  act  to  divide  the  state  into  judicial 
districts,  the  subject  and  object  are  identical ;  that  is,  the  an- 
swer would  be  the  same  respectively  to  questions  pointed  by 
those  words.  There  is,  therefore,  no  impropriety  in  using  them 
indifferently. 

§  84.  There  is  no  constitutional  restriction  as  to  the  scope 
or  magnitude  of  the  single  subject  of  a  legislative  act.  One 
to  establish  the  government  of  the  state  embraces  but  a  single 
subject  or  object,  yet  it  includes  aU  its  institutions,  aU  its- 
statutes.^  The  unity  of  such  an  act,  covering  the  multiform 
concerns  of  a  commonwealth,  is  the  congruity  of  all  the  details 
as  parts  of  one  "  stupendous  whole,"  of  one  government.  That 
is  the  grand  subject  of  such  a  statute  or  system  of  laws;  it  is 
equally  the  object  of  all  its  varied  titles  of  chapters  and  sec- 
tions. 

There  is  similar  unity  in  acts  creating  municipal  corpora- 
tions. Such  a  statute  creates  the  corporate  entity,  invests  it 
with  and  regulates  the  exercise  of  the  necessary  legislative, 
taxing,  judicial  and  police  powers.  It  embraces  but  one  sub- 
ject. The  separate  provisions  granting,  defining  and  regulat- 
ing these  powers  are  but  parts  of  a  whole,  and  essential  to  make 
a  whole — the  municipality.^  One  act  may  define  aU  the  crimes 
and  provide  a  procedure  in  prosecutions.  Each  crime  is  distinct ; 
the  practice  is  distinct ;  but  all  the  provisions  of  such  an  act  are 
congruous  parts  of  a  larger  subject  which  is  an  entirety.^  The 
California  codes  are  good  illustrations  of  comprehensive  acts, 
each  of  which  is  a  composite  unity.  One  is  entitled  "  An  act  to 
establish  a  political  code."  The  first  section  defines  its  scope 
and  parts :  "  This  act  shall  be  known  as  the  political  code  of  the 
state  of  California,  and  is  divided  into  five  parts  as  follows : 
Part  1.  Of  the  sovereignty  and  people  of  the  state,  and  of  the 
political  rights  and  duties  of  all  persons  subject  to  its  jurisdic- 
tion. 2.  Of  the  chief  political  divisions,  seat  of  government, 
and  legal  distances  of  the  state.  3.  Of  the  government  of 
the  state.  4.  Of  the  government  of  counties,  cities  and 
towns.  5.  Of  the  definitions  and  sources  of  law ;  the  com- 
mon law ;  the  publication  and  effect  of  the  codes ;  and  the  ex- 

1  Bowman  v,  Cockrill,  6  Kan.  311.    Grover  v.  Trustees,  etc.  45  N.  J.  L. 

2  Harris  V.  People,  59  N.  Y,   599;    399. 

Montclair  v.  RamsdeU,  107  U.  S.  147 ;        3  State  v.  Brassfield,  81  Mo.  151, 162. 


CONSTITUTIONAL    KEQCIREMENT,  ETC.  93 

press  repeal  of  the  statutes."  The  constituents  of  this  section 
are  congruous  as  parts  of  a  political  system.  But  in  less  com- 
prehensive legislation,  the  subject  or  object  may  admit  of 
joining  only  the  topics  in  one  of  these  subdivisions.  So  in 
legislating  still  more  in  detail  the  suljject  may  be  so  circum- 
scribed that  even  two  topics  in  one  subdivision  would  render 
the  act  multifarious.^  The  constitution  does  not  enumerate 
the  integers  of  statutory  law,  and  therefore  the  legislature 
may  make  such  divisions  as  it  thinks  proper,  if  it  confines  each 
act  to  a  single  subject ;  nor  is  it  any  objection,  under  this  clause 
of  the  constitution,  that  an  act  does  not  dispose  of  the  whole 
subject  to  which  it  relates.^ 

§  85.  The  provisions  of  an  act  must  he  germane  to  one 
subject. —  "Whatever  may  be  the  scope  of  an  act,  it  can  era- 
brace  but  one  subject,  and  all  its  provisions  must  relate  to  that 
subject ;  they  must  be  parts  of  it,  incident  to  it  or  in  some  rea- 
sonable sense  auxiliary  to  the  object  in  view.  That  subject 
must  be  expressed  in  the  title  of  the  act.  The  constitutional 
requirement  is  addressed  to  the  subject,  not  to  the  details  of 
the  act.  The  subject  must  be  single;  the  provisions,  to  ac- 
complish the  object  involved  in  that  subject,  ma}^  be  multi- 
farious.* It  is  a  matter  of  some  difficulty,  in  many  instances, 
to  determine  precisely  what  is  the  subject  of  an  act  by  reason 
of  the  contrariety  of  its  provisions  and  the  complexity  of  its 
machinery  and  aims.  All  acts  are  not  methodically  framed ; 
they  do  not  always  declare  directly  the  subject  or  ultimate 
end  in  the  enacting  part,  and  then  define  its  constituents  and 
adjuvants,  so  that  the  coherence  and  subordination  of  the 
parts,  and  their  relation  to  a  subject  in  which  they  converge, 
can  be  at  once  perceived.  In  the  body  of  an  act  the  subject 
in  which  the  operation  of  all  the  details  unite,  or  are  intended 
to  unite,  is  not  unfrequently  left  to  inference.  If  it  can  be 
made  out  by  construction,  is  single,  and  embraces  aU  the  pro- 
visions of  the  act,  it  is  enough  so  far  as  the  purview  is  con- 
cerned.^ The  statement  of  the  subject  in  the  title  when  cor- 
rectly and  comprehensively  expressed  will  furnish  a  key  to  the 

1  Grover  v.  Trustees,  etc.  45  N,  J.  L.  •*  State  v.  Tucker,  46  Ind.  355 ;  State 
599.  V.  Young.   47   Ind.  150;   Robison  v. 

2  Davis  V.  State,  7  Md.  158.  Miner,  G8  Mich.  549. 

3  Block  V.  State,  60  Ala.  493. 


94  CONSTITUTIONAL    EEQUIEEMENT,  ETC. 

intended  unity  of  the  enacting  part.  The  whole  act  can  be^ 
vaUd  only  when  the  subject  so  stated  includes  all  the  provis- 
ions in  the  body  of  the  act.^  'None  of  the  provisions  of  a  stat- 
ute will  be  held  unconstitutional  when  they  all  relate,  directly 
or  indirectly,  to  the  same  subject,  have  a  natural  connection^ 
and  are  not  foreign  to  the  subject  expressed  in  the  title.- 

§  86.  The  reiiuiremeiit  to  state  the  subject  in  the  title. — 
The  direction  is,  generally,  that  the  subject  be  "  expressed  in 
the  title."  It  is  varied  in  some  instances.  In  ITevada  it  is  to 
be  hriefly  expressed ;  in  several  it  is  to  be  dearlij  expressed. 
These  qualifying  words  do  not  add  any  new  element ;  they 
merely  assist  in  the  interpretation.  A  brief  statement  of  the 
subject  will  suffice  under  the  provision  as  it  is  generally 
worded ;  ^  and  the  decisions  in  Nevada  afford  no  ground  for 
inferring  that  a  prolix  title,  otherwise  unobjectionable,  would 
satiate  an  act.*  The  requirement  that  it  be  clearly  expressed 
imports  no  more  than  that  it  be  expressed;  though  it  may 
add  some  emphasis.*  If  the  title  does  not  clearly  express  the 
subject,  but  is  ambiguous  and  suggestive  of  doubt,  still  it  is- 
believed  the  doubt,  if  possible,  would  be  resolved  in  favor  of 
the  validity  of  the  act."  The  title  of  an  act  was  formerly  na 
part  of  it,  and  was  not  much  resorted  to  in  the  exposition  of 
the  act;  but  under  this  constitutional  clause  it  is  an  indis- 
pensable part  of  every  act.'^ 

§  87.  The  subject  in  an  act  can  be  no  broader  than  the 
statement  of  it  in  the  title. —  It  is  required  not  only  that  an 
act  shaU  contain  but  one  subject,  but  that  that  subject  be  ex- 

1  Montgomery  M.  B,  &  L.  Asso.  v.  Commonwealth  v.  Martin,  107  Pa.  St 
Eobinson,  69  Ala,  413 ;  Ex  parte  Pol-  185 ;  W.  Phila  R.  R.  Co.  v.  UnioL  R.  R. 
lard,  40  Ala,  99 ;  Grover  v.  Trustees,  Co.  9  Pliila.  495 ;  Carr  v.  Thomas,  18 
etc.  45  N.  J.  L.  399 ;  Shivers  v.  New-  Fla.  736 ;  Evans  v.  Memphis,  etc.  R.  R. 
ton,  45  N.  J.  L.  469 ;  Ryerson  v.  Utley,  Co.  56  Ala.  246 ;  Board  of  Com'rs 
16  Mich.  269.  v.  Baker,  80  Ind.  374 ;  Townsliip  of 

2  Rowland    Coal   &    Iron   W.    v.  Union  v.  Rader,  39  N.  J.  L.  509. 
Brown,    13    Bush,    685 ;    Phillips  v.  ^  Montclair  v.  RamsdeU,  107  U.  S. 
Bridge  Co.,  2  Met  (Ky.)  222 ;  LouisviUe,  147 ;  State  v.  Board,  etc.  26  Ind.  522 ; 
etc.  Co.  V.  Ballard,  2  Met  (Ky.)  168 ;  People  v.  Briggs,  50  N.  Y.  553. 
Chiles  V.  Drake,  2  Met  (Ky.)  150;  ^McGrath    v.   State,  46    Md.  633; 
Johnson  v.  Higgins,  3  id.  566.  State  v.  Town  of  Union,  33  N.  J.  L. 

» Shivers  v.  Newton,  45  N.  J.  L.  469.     350 ;  Indiana  Central  R'y  Co.  v.  Potts, 
« State  V.  Ah  Sam,  15  Nev.  27.  7  Ind.  681 ;  Yeager  v.  Weaver,  64  Pa. 

6  Dorsey's  Appeal,  72  Pa,  St  192 ;    St  427 ;  Stein  v.  Leeper,  78  Ala.  517. 


CONSTITUTIONAL    REQUIREMENT,  ETC.  95» 

pressed  in  the  title.  The  title,  thus  made  a  part  of  each  act, 
must  agree  with  it  by  expressing  its  subject ;  the  title  will  fix 
bounds  to  the  purview,  for  it  cannot  exceed  the  title-subject, 
nor  be  contrary  to  it.^  xin  act  will  not  be  so  construed  as  to 
extend  its  operation  beyond  the  purpose  expressed  in  the  title.^ 
It  is  not  enough  that  the  act  embraces  but  a  single  subject  or 
object,  and  that  all  its  parts  are  germane;  the  title  must  ex- 
press that  subject,  and  comprehensively  enough  to  include  aU 
the  provisions  in  the  body  of  the  act.*  The  unity  and  com- 
pass of  the  subject  must,  therefore,  always  be  considered  with 
reference  to  both  title  and  purview.  The  unity  must  be  sought, 
too,  in  the  ultimate  end  which  the  act  proposes  to  accomplish, 
rather  than  in  the  details  leading  to  that  end.*  The  particu- 
lar effect  of  the  purview  exceeding  the  title,  or  of  the  latter 
misrepresenting  the  purview,  wiU  be  discussed  in  another  sec- 
tion.* The  title  cannot  be  enlarged  by  construction  when  too 
narrow  to  cover  all  the  provisions  in  the  enacting  part,  nor 
can  the  purview  be  contracted  by  construction  to  fit  the  title ;  ^ 
but  the  title,  if  not  delusively  general,  may  be  suMcient  though, 
more  extensive  than  the  purview.'^ 

§  88.  Requisites  of  title  —  It  need  not  index  the  details  of 
the  act. —  The  title  must  state  the  subject  of  the  act  for  the 
purpose  of  information  to  members  of  the  legislature  and  pub- 

1  Board  of  Com'rs  v.  Baker,  80  Ind  *  State  v.  Town  of  Union,  33  N.  J. 
374 ;  Matter  of  Tappen,  36  How.  Pr.  L.  350 ;  State  v.  County  Judge,  2 
390 ;  State  v.  Garrett,  29  La.  Ann.  637 ;  Iowa,  280 ;  City  of  St.  Louis  v.  Tief  el,. 
Coutieri  v.  Mayor,  etc.  44  N.  J.  L.  58 ;  42  Mo.  578 ;  Morford  v.  Unger,  8  Iowa,. 
IMississippi,  etc.  Boom  Co.  v.  Prince,  82;  Wliiting  v.  Mt.  Pleasant,  11  Iowa, 
10  Am.  &  Eng.  Cor.  Cas.  391 ;  S.  C.  34  482 ;  Clinton  v.  Draper,  14  Ind.  295  ^ 
Mum.  71 ;  Ex  parte  Moore,  62  Ala.  Supervisors  v.  People,  25  IIL  181 ; 
471 ;  Matter  of  Blodgett,  89  N.  Y.  392.  Succession  of  Lanzetti,  9  La,  Ann.  329. 

2  Bates  V.  Nelson,  49  IMich.  459.  5  gee  post,  g§  102,  103. 
3Mewherter  v.  Price,  11  Ind.  201;        SHowland  Coal  &  Iron  Works  v. 

Ryerson  v.  Utley,  16  Midi.  269 ;  Dor-  Brown,  13  Bush,  681 ;  In  re  Paul,  94 

sey's  Appeal,  72  Pa.  St  192 ;  Ross  v.  N.  Y.  497 ;  Matter  of  Sackett,  etc.  Sts. 

Davis,  97  Ind.  79 ;  Knoxville  v.  Lewis,  74  N.  Y.  95;  State  v.  Clinton,  27  La. 

12  Lea,  180 ;  Stiefel  v.  Md.  Inst  for  Ann.  40. 

Blind,  61  Mtl  144;  Town  of  Fishkill        '  Yeager  v.  "Weaver,  64  Pa.  St  427; 

V.  Fishkill,  etc.  P.  R.  Co.  22  Barb.  634 ;  In  re  De  Vaucene,  31  How.  Pr.  337 ; 

Grover  v.  Trustees,  etc.  45  N.  J.  L.  Luther  v.  Saylor,  8  Mo.  App.  424 ; 

399 ;  Shivers  v.  Newton,  45  N.  J,  L.  Johnson  v.  People,  83  IH  431 ;  Cou- 

469 ;  Cooley's  Const  L.  179 ;  Greaton  tieri  v.  New  Brunswick,  44  N.  J.  L.  58  ^ 

V.  GriflBn,  4  Abb.  Pr.  (N.  S.)  310.  Garvin  v.  State,  13  Lea,  162. 


-QQ 


CONSTITUTIONAL   KEQUIKEKENT,  ETC. 


lie  while  the  bill  is  going  through  the  forms  of  enactment.^ 
It  is  not  required  that  the  title  should  be  exact  and  precise.^ 
It  is  sufficient  if  the  language  used  in  the  title,  on  a  fair  con- 
struction, indicates  the  purpose  of  the  legislature  to  legislate 
according  to  the  constitutional  provision;  so  that  making 
every  reasonable  intendment  in  favor  of  the  act,  it  may  be 
said  that  the  subject  or  object  of  the  law  is  expressed  in  the 
title.^  As  said  by  the  supreme  court  of  Illinois,  the  consti- 
tution does  not  require  that  "the  subject  of  the  bill  shall  be 
specifically  and  exactly  expressed  in  the  title ;  hence  we  con- 
clude that  any  expression  in  the  title  which  caUs  attention  to 
the  subject  of  the  bill,  although  in  general  terms,  is  all  that  is 
required."  ^  It  may  be  general,  but  must  be  specific  enough 
to  answer  reasonably  the  purpose  for  which  the  subject  is  re- 
quired to  be  expressed  in  the  title.^ 

When  the  subject  is  stated  in  the  title  the  constitution  is  so 
far  complied  with  that  no  criticism  of  the  mode  of  statement 

Duffy,   16 


1  Grover  v.  Trustees,  etc.  45  N.  J.  L. 
S99 ;  McGratli  v.  State,  46  McL  633 ; 
People  V.  Lawrence,  36  Barb.  185 ; 
Dorsey's  Appeal,  72  Pa.  St.  192;  Indi- 
ana Cent.  Ry.  Co.  v.  Potts,  7  Incl.  681 ; 
Shields  v.  Bennett,  8  W.  Va.  83 ;  Peo- 
ple V.  McCaUum,  1  Neb.  182 ;  State 
V.  County  Judge,  2  Iowa,  282;  Sun 
Mut.  Ins.  Co.  V.  Mayor,  etc.  8  N.  Y. 
252 ;  Mississippi,  etc.  Boom  Co.  v. 
Prince,  10  Am.  &  Engt  Cor.  Cas.  392 ; 
S.  C.  34  JVIinn.  71 ;  Harris  v.  People,  59 
N.  Y.  602 ;  Parkinson  v.  State,  14  Md. 
184 ;  Ryerson  v.  Utley,  16  Mich.  269 ; 
Prewster  v.  Syi-acuse,  19  N.  Y.  116 ; 
National  Bank  v.  Southern,  etc.  Co. 
55  Ga.  36 ;  Town  of  Fishkill  v.  Fish- 
kill,  etc.  P.  R.  Co.  22  Barb.  634 ;  Har- 
gi-ave  V.  Weber,  66  Mich.  59. 

2  Grover  v.  Tinistees,  etc.  45  N.  J.  L. 
•399 ;  Daubman  v.  Smith,  47  N.  J.  L. 
200 ;  In  re  Mayer,  50  N.  Y.  506 ;  Peo- 
ple V.  Briggs,  50  N.  Y.  558 ;  Louisiana 
State  Lottery  Co.  v.  Richoux,  23  La. 
Ann.  745 ;  Jolmson  v.  People,  83  IIL 
431. 

3  Grover  v.  Trustees,  etc.  supra; 
State  Line,  etc.  R  R.  Co.'s  Appeal,  77 


Pa   St.  429 ;  Atkiuson  v. 
Minn.  49. 

4  Johnson  v.  People,  83  IIL  436. 

5  Sliivers  v.  Newton,  45  N.  J.  L.  469 ; 
State  V.  Garrett,  29  La.  Ann.  637; 
Montclaii-  v.  Ramsdell,  107  U.  S.  147 ; 
Matter  of  Sackett,  etc.  Sts.  74  N.  Y. 
95 ;  Sliields  v.  Bennett,  8  W.  Va.  83 ; 
Green  v.  Mayor,  etc.  R.  M.  Charlt.  368 ; 
Mayor,  etc.  v.  State,  4  Ga.  26 ;  City  of 
Eureka  v.  Davis,  21  Kan.  580; 
Grover  v.  Trustees,  etc.  45  N.  J.  L. 
399 ;  People  v.  McCallum,  1  Neb.  183 ; 
Montgomery,  etc.  Asso.  v.  Robinson, 
69  Ala.  413;  American  Printing 
House  v.  Dupuy,  37  La.  Ann.  188 ; 
State  V.  Wilson,  12  Lea,  246;  State 
V.  McConneU,  3  Lea,  332;  State  v. 
Wliitworth,  8  Lea,  594;  Common- 
wealth V.  Green,  58  Pa.  St  226; 
Luelu-man  v.  Taxing  Dist.  2  Lea,  425 ; 
Clinton  Water  Com'rs  v.  Dwight,  101 
N.  Y.  9 ;  In  re  Knaust,  101  N.  Y.  188 ; 
Greaton  v.  Griffin,  4  Abb.  Pr.  (N.  S.) 
310 ;  Daubman  v.  Smith,  47  N.  J.  L. 
200 ;  State  v.  Elvins,  32  N.  J.  L.  362 ; 
Parkinson  v.  State,  14  Md.  184;  Fal- 
coner V.  Robinson,  46  Ala.  340. 


CONSTITUTIUXAL    REQUIREMENT,  ETC.  97 

will  affect  the  validity  of  the  act.  The  statute  is  valid  in  such 
a  case ;  the  degree  of  particularity  in  expressing  the  subject 
iu  the  title  is  left  to  the  discretion  of  the  legislature.^  No  par- 
ticular form  has  been  prescribed  in  the  constitution  for  ex- 
pressing the  subject  or  purpose  of  a  statute  iu  its  title.-  It 
need  not  index  the  details  of  the  act,  nor  give  a  synopsis  of 
the  means  by  which  the  object  of  the  statute  is  to  be  effectu- 
ated by  the  provisions  in  the  body  of  the  act.' 

§  89.  ^^  Etc."  may  increase  the  scope  of  a  title  —  ^'  And 
for  otlier  purposes  "  will  not. —  It  has  been  decided  in  Ten- 
nessee that  "  etc."  added  to  a  title  has  force  in  extending  the 
enumeration  which  precedes  it.*  The  question  arose  as  to  the 
vahdity  of  provisions  in  an  act  having  this  title :  "  An  act  to 
punish  as  felons  all  parties  who  may  engage  in  keeping  or 
€onducting  haUs  or  houses  for  conduct  of  games  of  keno,  faro, 
three-card  monte  and  mustang,  etc."  Turney,  J.,  deUvering 
the  opinion  of  the  court,  said :  "  The  '  etc'  used  at  the  end  and 
as  part  of  the  title  may  not  be  rejected;  it  has  a  meaning. 
Webster  defines  it,  '  et  cetera,'  '  and  others,'  '  and  so  forth.' 
This  definition  applied  here  makes  it  import  '  and  the  rest  of 

1  In  re  INIayer,  50  N.  Y.  504 ;  Siin  etc.  5  N.  Y.  285 ;  People  v.  LaAvrence, 
Mut  Ins.  Co.  V.  Mayor,  etc.  8  N.  Y.  41  N.  Y.  137 ;  Daubman  v.  Smith,  47 
241 ;  State  v.  Town  of  Union,  33  N.  J.  N.  J.  L.  200 ;  Luehrman  v.  Taxing 
L,  350 ;  State  v.  Newark,  34  N.  J.  L.  Dist.  2  Lea,  425 ;  Township  of  Union 
236 ;  j\Iontgomery,  etc.  Asso.  v.  Eobin-  v.  Eader,  39  N.  J.  L.  507 ;  Brown  v. 
son,  69  Ala.  413 ;  Ryerson  T.  Utley,  16  State,  73  Ga.  38;  Reed  v.  State,  13 
Midi.  269;  People  v.  Mahaney,  13  Ind.  641;  State  v.  Lasater,  9  Baxt. 
Mich.  494 ;  Morford  v.  Unger,  8  Iowa,  584 ;  State  t.  Miller,  45  Mo.  495 ;  Ham- 
82;  "Whiting  v.Mt.  Pleasant,  11  Iowa,  mond  v.  Lesseps,  31  La.  Ann.  337; 
482 ;  Indiana  Cent  R.  R.  Co.  v.  Potts,  Peachee  t.  State,  63  Ind.  399 ;  Howell 
7  Ind.  681 ;  State  v.  Bowers,  14  Ind.  v.  State,  71  Ga.  224 ;  Luther  r.  Saylor. 
195 ;  State  v.  County  Judge,  2  Iowa,  8  Mo.  App.  424 ;  Mailin  v.  Broach,  oO 
280 ;  Brewster  t.  SjTacuse,  19  N.  Y.  Am.  Dec.  306 ;  People  v.  BrisUn,  80 
116.  IlL  423 ;  Bright  v.  McCulloch,  27  Ind. 

2  Grover  v.  Tiiistees,  etc.  45  N.  J.  L.  223 ;  State  v.  Cassidy,  22  ISIinn.  325 : 
399 ;  People  v.  IMcCallum,  1  Neb.  182.  State  v.  Coimty  Comm'rs,  13  Am.  & 

3  People  V.  McCallimi,  supra;  SUiart  Eng.  Cor.  Cas.  203 ;  S.  C.  17  Nev.  96 ; 
V.  KinseUa,  14  Mmu.  525 ;  St.  Paul  v.  Goldsmith  v.  Rome  R.  R.  Co.  62  Ga. 
Colter,  13  Minn.  50 ;  State  v.  Daniel,  473 ;  State  v.  Silver,  9  Nev.  227 ;  Gab- 
28  La.  Ann.  38;  McCaslki  v.  State,  bert  v.  Jefferson  R  R  Co.  11  Ind 
44  Ind.  151 ;  CoUins  v.  Henderson,  11  365. 

Bush,  74 ;  Sun  Mut  Ins.  Co.  v.  :\Iayor,        •*  Garvin  v.  State,  13  Lea,  163. 
etc.  8  N.  Y.  241 ;  Conner  v.  Mayor, 
7 


98  CONSTITUTIONAL    EEQUIKEMENT,  ETC. 

the  games,'  or  '  other  games.'  It  gives  the  members  of  the 
legislature  notice  that  the  subject  of  the  title  is  drawn  or 
elaborated  in  the  body  of  the  act ;  that  the  reformatory  force 
of  the  act  is  not  to  be  confined  to  houses,  or  to  persons  keep- 
ing houses  for  playing  the  four  games  recited,  but  is  extended 
to  other  games.  It  has  a  significant  and  pointed  conclusion 
which  could  not  escape  the  attention  of  any  member  of  the 
legislature  who  has  regard  to  his  obligations  and  duties.  It 
said  to  him  in  terms,  other  games  are  leveled  at  besides  the 
four  mentioned  in  the  title,  and  you  are  imdted  to  look  at 
them.  It  admonished  him,  the  act  is  not  made  to  cover  a  leg- 
islation incongruous  in  itself.  By  fair  intendment,  the  bill  had 
a  necessary  and  proper  connection  with  the  act.  ...  It 
cannot  be  objected  that-  the  title  upon  the  subject  is  broader 
than  the  act  under  it.  The  title  notified  the  legislature  of  a 
thoroughly  comprehensive  thrust  at  all  parties  engaged  in 
conducting  gambhng  houses;  the  act  confines  the  thrust  to 
parties  conducting  houses  in  the  playing  of  nine  games.  The 
record  shows  there  are  a  great  many  other  games  which  are 
played  everywhere,  besides  these  mentioned  in  the  act,  of 
which,  however,  we  presume  the  draftsman  of  the  act  was  un- 
informed, but  which  might  have  been  embraced  under  the  title 
to  his  act.  .  .  .  It  is  now  insisted  the  abbreviation  '  etc.* 
has  no  meaning  at  all,  or,  at  most,  means  '  and  for  other  pur- 
poses.' .  .  .  The  abbreviation  may  no  longer  be  called  such. 
It  is  thoroughly  incorporated  into  our  language,  is  defined  by 
our  lexicographers,  and  is  a  perfect  Enghsh  word  in  almost 
common  use. 

"  It  cannot  mean  '  and  for  other  purposes,'  for  the  reason 
that  such  definitions  would  include  any  and  all  purposes,  how- 
ever foreign  to  the  object  of  the  legislation,  one  of  the  incon- 
veniences and  inconsistencies  intended  to  be  remedied  by  the 
present  constitution."  The  phrase,  "  and  for  other  purposes,'* 
expresses  no  specific  purpose,  and  imports  indefinitely  some- 
thing different  from  that  which  precedes  it  in  the  title.  It  is 
therefore  universally  rejected  as  having  no  force  or  effect, 
wherever  this  constitutional  restriction  operates.^ 

1  City  of  St  Louis  v.  Tief el,  42  Mo.  637 ;  Commonwealth  v.  Green,  58  Pa. 
578 ;   State  v.  Gan-ett,  29  La.   Ann     St  233. 


CONSTITL'TIOX.VL    KEQUini.MEXT,  ETO.  99 

§  00.  A  title  too  gonoral  to  answer  the  purpose  inteiuled, 
or  otherwise  misleadiiij;,  will  vitiate  the  act.— A  title  so 
general  as  practically  to  conceal  the  subject  of  the  statute,  or 
a  false  or  delusive  title,  will  be  treated  as  not  constitutionally 
framed,  and  the  act  held  void.'  An  act  "  to  legalize  and  au- 
thorize the  assessment  of  street  improvements  and  assess- 
ments "  was  held  void  for  undue  generality  in  not  mention- 
ing the  place  where  it  was  intended  to  operate.  It  was  a  local 
act,  and  yet  it  did  not  name  the  city  to  which  it  applied.^  So 
an  act  "  to  regulate  a  road  in  the  town  of  Palatine,  Mont- 
gomery county,"  was  held  to  conceal  its  true  subject  and  to 
be  false  and  delusive.'*  The  following  acts,  as  entitled,  received 
the  same  construction :  An  act  to  fix  the  salaries  of  the  of- 
ficers of  a  particular  city,  and  confined  to  that  city  in  its  pro- 
visions, but  entitled  "An  act  to  fix  and  regulate  the  salaries 
of  city  officers  in  cities  of  this  state."  *  An  act  legalizing  by 
its  provisions  a  lottery  scheme  for  a  private  partnership,  under 
the  title  of  "  An  act  to  estabUsh  the  Mobile  Charitable  Asso- 
ciation for  the  benefit  of  the  common  school  fund  of  Mobile 
county,  without  distinction  of  color."  =  A  supplement  to  a 
railroad  charter  providing  for  extension  of  its  track  into  a  new 
territory  under  a  clause  in  the  title  "  to  lay  additional  tracks."  « 

The  case  of  Anderson  v.  Hill '  mvolves  an  act  with  a  mis- 
leading title.  The  title  of  the  act  is  "to  provide  for  the 
straightening  or  otherwise  deepening  the  channel  of  the  Dow- 
agiac  river  in  Van  Buren  county."  There  were  three  sections 
in  the  act.  They  authorized  either  or  both  of  the  two  named 
townships  in  Van  Buren  county  to  vote  money  to  be  raised 
by  tax,  and  the  expenditure  of  it  "  for  such  river  improve- 
ments."    It  was  held  unconstitutional  in  part  on  the  ground 

1  People  V.  Allen,  42  N.  Y.  404.  one  of  the  particulars  going  to  make 

2  Durkee  v.  City  of  Janesville,  26  up  the  public  peace  and  good  order. 
Wis.  697.  In  Neuendorff  v.  Durj-ea,  ^  People  v.  Conim'rs  of  Highways, 
69  N.  Y.  557,  an  act  by  its  provisions  53  Barb.  70. 

local  to  New  York  City  was  general        *  Coutieri  v.  New  Brunswick,   44 

in  its  title :  "  An  act  to  preserve  the  N.  J.  L.  58. 

pubUc  peace  and  order  on  the  first        5  Closes  v.  Mayor,  eta  53  Ala.  198. 
day  of  the  week,  commonly  called        ^  Union  Passenger  R'y  Co. 's  Appeal, 

Sunday."    It  was  held  sufficient  to  81*  Pa,  St  91 ;  West  Phila.  R  R  Co.  v. 

cover  provisions  prohibiting  dramatic  Union  R  R.  Co.  9  Phila.  495. 
performances  on  that  day,  since  the        "  54  Mcb-  477. 
cassation  of  such  entertainments  was 


100  CONSTITUTIONAL    KEQUIKEMENT,  ETC. 

that  '•  the  object "  was  not  suiRciently  stated  in  the  title.  The 
<30iirt  say :  "  The  state  having  the  right  to  engage  in  and  carry 
on  works  of  internal  improvement  by  the  expenditure  of  grants 
to  the  state  of  lands,  the  obvious  inference  from  the  language 
of  the  title  would  be  that  the  state  proposed  to  provide  for  the 
straightening  or  deepening  of  the  channel  of  the  Dowagiao 
river  by  doing  what  they  constitutionally  could  do,  namely, 
by  appropriating  land  for  that  purpose.  This  is  the  method 
she  has  provided  for  making  her  internal  improvements  since 
1850.  In  view  of  the  constitutional  restriction,  and  the  long 
course  of  practice  pursued  by  the  state  in  making  internal  im- 
provements, would  any  one  be  justified  in  assuming  that  the 
language  in  the  title  of  this  act  was  intended  to  embrace  the 
object  of  permitting  the  legal  voters  of  the  township  of  Deca- 
tur to  vote  a  tax  upon  the  taxable  property  of  the  township  to 
aid  the  state  in  carrying  on  the  work  of  straightening  and 
deepening  the  channel  of  the  Dowagiac  river?  Yet  such  was 
the  real  as  well  as  the  principal  object  of  the  act.  "Without 
this  legislation  the  state  possessed  full  power,  acting  under  its 
state  board  of  control  of  swamp  lands,  to  make  the  improve- 
ment named  in  the  title  of  the  act.  The  state  has  never  acted 
and  has  no  occasion  to  act  under  the  provisions  of  act  No.  323 
[the  act  in  question].  The  circuit  court,  however,  finds  as  a 
fact,  that  the  Dowagiac  state  ditch  mentioned  in  the  contract 
[for  work  on  the  ditch  entered  into  with  the  state]  was  the 
same  improvement  as  that  contemplated  by  the  special  act 
No.  323.  If  this  be  true,  then  clearly  the  object  of  the  act 
was  not  expressed  in  the  title  and  could  not  be  otherwise  than 
in  some  manner  indicating  that  the  object  of  the  law  was  to 
authorize  or  enable  the  townships  of  Decatur  and  Hamilton 
to  aid  the  state  in  straightening  or  deepening  the  channel  of 
the  Dowagiac  river  in  the  county  of  Yan  Buren.  As  weU. 
might  an  act  to  authorize  the  construction  of  a  railroad  from 
one  point  to  another  include  provisions  for  municipalities  along 
its  route  to  vote  aid  in  its  construction,  without  violating  the 
constitution."  ^ 

§  91.  The  title  should  accompany  a  hill  in  its  passage 
through  the  legislature. —  It  is  during  the  passage  of  a  Ijill 
that  its  title  is  intended  by  the  constitution  to  impart  informa- 

1  See  Brooks  v.  Hydom,  76  JVIich.  273 ;  State  v.  Coni'rs,  41  Kan.  630. 


CONSTITUTIONAL    REQUIREMENT,  ETC.  101 

tion  to  the  public  and  to  members  of  the  legislature  of  the  gen- 
eral subject  of  legislation.  To  effectuate  that  intent  the  title 
should  accompany  the  bill  in  all  its  stages  through  the  process 
of  enactment.  As  stated  by  Shnonton,  P.  J. :  "  If  a  bill  can 
be  passed  with  a  title  which  does  not  denote  its  subject,  and 
after  its  passage  the  title  can  be  amended  so  as  for  tlie  firj^t 
time  to  express  its  purpose,  the  constitutional  provision  is 
of  little  value." '  Only  such  portions  of  a  bill  as  were  in- 
cluded in  the  subject  as  expressed  in  the  title  Avhen  it  jiassed 
the  two  houses,-  and  when  approved  by  the  governor,^  will 
acquii'e  the  force  of  law.  A  mere  clerical  mistake  or  a  mere 
clerical  change,  not  altering  the  sense  of  the  title,  will  be  dis- 
regarded.^ 

§  92.  Title  ami  subject-matter  liberally  construed  to  sus- 
tain legislatiou.-^ —  In  cases  not  clearly  within  the  mischief 
intended  to  be  remedied  by  requiring  the  subject  or  object  of 
an  act  to  be  single  and  expressed  in  the  title,  legislation  will 
not  be  adjudged  void  on  any  nice  or  hypercritical  interpreta- 
tion.^ Sound  policy  and  legislative  convenience  dictate  a  lib- 
eral construction  of  the  title  and  subject-matter  of  statutes  to 

1  Commonwealth  v.  Martin,  107  Pa,  legislative  jji-actice,  it  frequently  be- 

St  185.     In  Attorney-General  V.  Rice,  comes  necessary  to  amend  the  title 

64  Midi.  385,  it  appeared  that  to  an  as  introduced  in  order  to  conform  to 

act  to  organize  the  to^vnsllip  of  Iron-  changes  in  the  bilL     The  title  to  a 

wood,  in  the  county  of  Ontonagon,  bill  is  usually  adopted  after  it  has 

it  was  objected  that  it  had  been  sub-  passed  the  house,  and  it  is  not  an  es- 

stituted  after  the  time  for  introduc-  sential  part  of  a  biU,   although  it  is 

ing    new    bills    had    expu-ed    for  a  of  a  law.     Larrison  v.  Peoria,  etc.  R. 

skeleton  biU  entitled  "An  act  to  or-  R.  Co.  77  111.  17."    The  facts  stated 

gauize  the  township  of  Au  Train ;  "  in  tlie  contention  were  not  accepted 

that  therefore  the  title  of  the  bUl  as  by  the  court,  and  it  was  held  that 

inti'oduced  did  not  express  the  object  the  journals  not  showing  the  facts, 

of  the  act  as  passed.    The  court  say :  parol  evidence  was  not  admissible. 

"  We  cannot  extend  the  provisions  of  People  v.    McEh-oy,    72  ^MIcIl   446 ; 

the  constitution   beyond  its  express  Brooks  v.  Hydorn,  76  id.  273. 

terms  in  this  respect     If  the  object  -'  Biuz  v.  Weber,  81  111.  288. 

of  the  act  as  passed  is  fully  expressed  ^  Stein  v.  Leeper,  78  Ala.  517. 

in  its  title,  the  form  or  status  of  such  •*  Pliunmer  v.  People,  74  111.   361 ; 

title  at  its  inti-oduction,   or  during  People  v.  Supervisors,  16  Mich.  254. 

any  of  the  stages  of  legislation  before  -^  See  ante,  §  82. 

it  becomes  a  law,  is  immaterial.     To  '>  Gillitt  v.  McCai'thy,  34  Minn.  318 ; 

hold  otherwise  would,  in  many  cases.  St.  Louis  v.  Green,  7  Mo.  App.  468 ; 

prevent  any  alteration  or  amendment  Supervisoi-s  v.  Heenan,  2  Minn.  330 ; 

of  a  bill  after  its  introduction,  as,  in  Peo]ile  v.  Parks,  58  CaL  635. 


102  CONSTITUTIOXAL    EEQUIEEMENT,  ETC. 

maintain  tlieir  validity ;  infraction  of  this  constitutional  clause 
must  be  plain  and  obvious  to  be  recognized  as  fatal.  The  sub- 
ject of  an  act  may  be  expressed  generally  in  the  title,^  or 
spelled  out  from  details,  and  occasionally  from  details  which 
are  independent  and  unconnected  except  through  some  general 
subject  as  cousins  german  are  related  through  a  common  an- 
cestor.2  An  act  in  relation  to  grading  Eighth  avenue  in  a 
city  was  held  a  subject  broad  enough  for  provisions  to  make 
the  grade  of  intersecting  streets  conform  to  the  altered  grade 
of  that  avenue.*  An  act,  among  other  things,  for  "laying 
out "  certain  portions  of  a  city,  and  to  provide  means  there- 
for, might  contain  provisions  for  opening  streets.  In  so  ruhng 
the  court  say:  "  The  words  '  laying  out '  must  be  interpreted 
in  a  broad  and  liberal  sense,  .  .  .  and  may  be  regarded  as 
covering  the  opening,  for  without  such  opening  the  laying  out 
would  be  of  no  avail."  *  An  act  "  to  indemnify  the  owners  of 
sheep  in  case  of  damage  committed  by  dogs,"  properly  con- 
tained a  provision  imposing  a  Ucense  fee  upon  the  owners  and 
keepers  of  dogs ;  ^  and  an  act  "  to  regulate  the  foreclosure  of 
real  estate,"  a  provision  that  the  right  of  redemption  might 
be  waived,"  as  well  as  provisions  to  otherwise  regulate  rights 
of  redemption  from  sales  under  executions,  judgments,  orders 
or  decrees  of  courts,  and  under  mortgages  by  advertisement ;  ^ 
an  act  "for  the  registration  of  all  adult  persons  in  each 
county,"  a  provision  that  whenever  it  should  be  necessary  to 
ascertain  the  number  of  adult  persons  with  a  view  to  any  ac- 
tion by  county  commissioners  or  other  county  officers,  the  list 

1  Ante,  §  88.  3  in  re  Blodgett,  27  Him,  12. 

2  Attorney-General  v.  Joy,  55  Mich.        ^In  re  Dept.  Pub.  Parks,  ^6  N.  Y. 
94 ;  State  v.  Young,  47  Ind.  150 ;  Bit-    437. 

ters  V.  Board,  etc.  81  Ind.  125 ;  State  &  Cole  v.  HaU,  103  111.  30. 

V.  Board,  etc.  26  Ind.  522;  State  v.  6  Atkinson  v.  Duffy,  16  Minn.  49. 

Miller,  45    Mo.  495 ;    State  v.  Bow-  In  Tuttle  v.  Strout,  7  id.  465,  under  an 

ers,  14  Ind.  195 ;  Lauer  v.  State,  22  act  "  for  a  homestead   exemption," 

Ind.  461 ;  In  re  Dept.  Pub.  Parks,  86  exemptions  of  personal  property  hav- 

N.  Y.  487 ;  People  v.  Ins.  Co.  19  Mich,  ing  no  special  connection  with  land 

392 ;    Garvin  v.   State,  13  Lea,   162 ;  occupied  as   a  homestead  were  sus- 

Neifingv.  Town  of  Pontiac,  56111. 172;  tained.     Such  provisions  would  ap- 

People  V.  Banks,  67  N.  Y.  568 ;  Ram-  pear  clearly  beyond  the  scope  of  the 

agnano  v.  Crook,  85  Ala,  226 ;  Burn-  title. 

side  V.  Lincoln  Co.  Court,  86  Ky.  423 ;  '  GiUitt  v.  McCai-tliy,  34  Minn.  3ia 
Indianapolis  v.  Huegele,  115  Ind.  581. 


CONSTITUTIONAL    REQUIREMENT,  ETC.  103 

on  file  should  be  taken  as  conclusive  on  that  subject.'  An  act 
"to  repeal  all  existing-  laws,  rules  and  provisions  of  law  re- 
stricting or  controlling  the  right  of  a  party  to  agree  w^ith  an 
attorney,  solicitor  or  counselor  for  his  compensation,  and  to 
more  accurately  fix  and  determine  the  costs  to  be  allowed 
to  the  prevailing  parties  in  suits  at  law  in  the  circuit  court,'* 
contained  provisions  for  the  taxation  of  costs  in  suits  at  law, 
including  attorneys'  fees,  and  also  permitting  parties  to  suits 
to  make  such  private  arrangements  with  their  attorneys  for 
carrying  on  suits  as  they  might  agree  upon.  The  court  held 
that  the  object  of  the  act  was  to  settle  and  declare  the  law  of 
compensation  for  skill  and  ser\ices  in  suits  at  law  in  the  cir- 
cuit court,  and  was  not  multifarious.'-  Acts  entitled  to  regu- 
late the  sale  of  intoxicating  liquor  will  justify  provisions 
against  giving  it  away  to  consumers.''  An  act  '•  to  regulate 
the  sale  of  opium  and  suppress  opium  dens  "  was  held  suffi- 
cient to  cover  provisions  forbidding  a  sale  or  gift  of  opium  to 
any  one  but  a  druggist  or  practicing  physician,  except  on  the 
prescription  of  a  practicing  physician.*  Expenses  may  be  pro- 
vided for  under  a  title  relating  to  "  debts."  '"  An  act  Avith  a 
general  title  for  relief  of  a  named  railroad  company  was  held 
properly  to  have  authorized  the  extension  of  its  tracks  through 
certain  streets  and  avenues  of  a  city,  and  to  consolidate  with 
any  other  company  and  thus  to  form  a  new  one ;  that  an  act 
for  relief  of  a  railroad  company  must  be  one  to  remove  some 
restriction  upon  its  powers,  or  to  give  it  greater  powers.'* 
Though  a  title  be  broad  it  will  be  restrained  by  construction 
to  lawful  purposes,^  An  act  "  to  authorize  the  town  of  P.  to 
raise  money  to  construct  a  dock  "  was  held  broad  enough  for 
provisions  to  maintain  it  afterwards  and  to  collect  wharfage.' 

1  Eureka  v.  Davis,  21  Kan.  580.  does  not  preclude  conferring  in  part 

2  lukster  v.  Carver,  16   ^lich.  484.     civil  jm-isdiction. 

In  Howland  Coal  &  Iron  Works  v.  3  Parkinson  v.  State,  14  Md.  184 ; 
Brown,  13  Bush,  681,  it  was  held  that  Wilhams  v.  State,  48  Ind.  306. 
an  act  professing  by  its  title  to  pro-  •iExparteYungJon,28FecLRep.308. 
vide  for  estabUshing  a  eriminal  court  5  State    v.   State    Auditer,   33    La- 
is not  so  restricted  by  tliis  title  that  Ann.  89. 

the  body  of  the  act  may  not  confer  •'  In  re  Prospect  Park,  etc.  R  R  Co. 

also  some  other  than  criminal  juris-  67  N.  Y.  371. 

diction.    The  opinion  construes  the  "  Allor  v.  Board,  etc.  43  ^lich.  76. 

word  crwii«o/ as  merely  part  of  the  ^Xown  of  Pelham  v.  Woolsoy,  16 

name  of  the  court,  tmd  being  so  used  Fed  Rep.  418. 


104:  CONSTITUTIONAL    REQUIREMENT,  ETC. 

The  court  said :  "  One  purpose  of  the  constitutional  provision 
referred  to  was  to  prevent  secret  or  fraudulent  legislation,  or 
people  from  being  misled  by  the  title.  .  .  .  And  that  rea- 
sonable notice  of  the  object  of  the  bill  should  be  given  by  the 
title ; "  and  in  referring  to  the  foregoing  title,  in  connection 
"with  the  subject-matter,  used  this  language :  "  It  is  true  that 
strictly  the  maintenance  of  this  work,  or  the  power  to  keep 
and  maintain  the  same  in  good  repair  at  the  expense  of  the 
town,"  is  not  identically  the  same  as  "  constructing  the  dock," 
spoken  of  in  the  title.  ]N"o  one,  however,  could  imagine  that 
the  dock  was  to  be  abandoned  by  the  town  the  moment  its  origi- 
nal construction  was  completed.  Subsequent  repair  is  neces- 
sary in  the  nature  of  the  case ;  and  authority  to  construct  the 
dock  would  therefore,  in  a  general  sense,  seem  to  imply  and 
include  the  power  to  keep  it  constructed  by  means,  of  neces- 
sary repairs."  The  provision  for  charging  dockage  was  con- 
nected with  the  construction  as  a  means  of  raising  the  money 
to  pay  the  cost. 

§  93.  The  siilyect  or  object  stated  generally  in  the  title 
includes  incidents  and  subsidiary  details.  —  It  appears  al- 
ready from  what  has  been  said  in  the  preceding  sections  and 
the  cases  which  have  been  cited,  that  the  constitutional  pro- 
vision in  question  permits  an  announcement  of  the  subject  in 
general  terms  in  the  title  of  an  act ;  that  to  facihtate  legisla- 
tion which  is  intended  to  be  germane  to  that  subject,  a  very 
liberal  construction  is  adopted,  both  of  the  constitutional  re- 
quirement and  of  legislation  affected  by  it,  to  sustain  all  laws 
not  within  the  mischief  intended  to  be  remedied.  It  only 
remains  to  illustrate  some  general  principles  which  the  course 
of  decision  has  estabhshed  for  determining  the  singleness  of 
legislative  subjects;  whether  the  provisions  under  them  are 
congruous  and  pertinent ;  and  the  consequences  of  a  total  or 
partial  departure  from  the  constitutional  injunction. 

Where  the  title  of  a  legislative  act  expressed  a  general  sub- 
ject or  purpose  which  is  single,  all  matters  which  are  naturaUv 
and  reasonably  connected  with  it,  and  all  measures  which  wiU 
or  may  facilitate  the  accomplishment  of  the  purpose  so  stated, 
are  properly  included  in  the  act,  and  are  germane  to  its  title.^ 

1  In  re  :Mayer,  50  N.  Y.  504 ;  State  Commissioners,  47  N.  Y.  501 ;  Smith 
V.  Squires,  26  Iowa,   345 ;   People  v.    v.  Commonwealth,    8     Bush,     108 ; 


CONSTITUTIONAT.   REQUIREMENT,  ETC. 


105 


The  fiegree  of  relationship  of 'each  provision  is  not  material,  if 
it  legitimately  tends  to  the  end  disclosed  in  the  title.'  What- 
ever the  scope  of  the  subject,  it  comprehends  not  only  its  con- 
stituent parts,  but  its  general  incidents,  and  those  which  pertain 
to  either  of  its  parts,  and  everything  contributary  to  the  pur- 
pose the  title  expresses  or  necessarily  implies.^  This  principle 
is  recognized  in  several  of  the  constitutions,  which  conline  an 
act  to  a  single  subject,  "  and  the  matters  properly  connected 
therewith." 

§  94r.  Same  —  Acts  of  incorporation. —  Any  definite  sub- 
ject is  generally  capable  of  almost  infinite  arbitrary  division; 
many  particular  or  subordinate  subjects  may  be  included  in 
one  general  subject,^  and  each  of  these  particular  or  subordi- 
nate subjects  may  be  selected  for  the  subject  of  the  bill,  and 
may  itself  be  divisible  and  may  embrace  other  particular  or 
subordinate  subjects.      Acts  to  create  corporations  contain 

man,  65  Ga.  476 ;  Daubman  v.  Smith, 
47  N.  J.  L.  200 ;  Yellow  River  Imp't 
Co.  V.  Arnold,  46  Wis.  214 ;   Unity  v. 


Sliiekls  V.  Bennett,  8  W.  Va.  83 ;  Ship- 
ley V.  Terre  Haute,  74Ind.  297 ;  Black 
V.  Cohen,  53  Ga.  621 ;  Golden  Canal 
Co.  V.  Bright,  8  Colo.  144 ;  Wishmier 
V.  State,  97  Ind.  160;  McCashn  v. 
State,  44  Ind.  151 ;  Ewing  v.  HohUt- 
zelle,  85  Mo.  64;  State  v.  Ather- 
ton,  13  Am.  &  Eng.  Cor.  Cas.  203 ; 
S.  C.  19  Nev.  332;  People  v.  Bris- 
Un,  80  III.  423 ;  Howland  Coal  &  Iron 
Works  V.  BrowTi,  13  Bush,  681 ;  Hosier 
V.  Hilton,  15  Barb.  657 ;  City  of  St. 
Louis  V.  Tief el,  42  Mo.  578 ;  State  v. 
AVliitworth,  8  Lea,  594;  PliiUips  v. 
Covington,  etc.  Bridge  Co.  2  Slet  (Ky.) 
219 ;  Brown  v.  State,  73  Ga.  38 ;  Town- 
ship of  Union  v.  Rader,  39  N.  J.  L. 
509 ;  Montgomery  M.  B.  &  L.  Asso.  v, 
Robinson,  69  Ala.  413 ;  Goldsmith  v. 
Georgia  R.  R.  62  Ga.  485 ;  To%\ti  of 
Abmgton  v.  Cabeen,  106  III  200; 
Mayor,  etc.  v.  Reitz,  50  Md.  575; 
Farmers'  L.  &  T.  Co.  v.  Oregon,  etc. 
R.  R.  Co.  24  Fed.  Rep.  407 ;  State  v. 
McConnell,  3  Lea,  332 ;  Allen  v.  Tison, 
50  Ga,  374  ;  Adams  v.  Webster,  26  La. 
Ami.  142 ;  Campbell  v.  Board  of  Phar- 
macy, 45  N.  J.  L.  241 ;  McArthur  v. 
Nelson,  81  Ky.  67 ;  Halleman  v.  Halle- 


Burrage,  103  U.  S.  447 ;  Ackiey  School 
Dist.  V.  HaU,  113  U.  S.  135 ;  Gilhtt  v. 
McCarthy,  34  Minn.  318 ;  Central  Plk. 
R  Co.  V.  Hannaman,  22  Ind.  484; 
Smith  V.  Bohler,  72  Ga,  546 ;  Kirkpat- 
rick  V.  New  Brunswick,  40  N.  J.  Eq.  46 ; 
CrawfordsvUle,  etc.  T.  Co.  v.  Fletcher, 
104  Ind.  97;  People  v.  Goddard,  8 
Colo.  432 ;  Mahomet  v.  Quackenbush. 
117  U.  S.  508 ;  Seay  v.  Bank  of  Rome, 
66  Ga.  609 ;  State  v.  Squires.  26  Iowa, 
346 ;  Louisville,  etc.  R.  R.  Co.  v.  Bal- 
lard, 2  Met.  (Ky.)  165 ;  In  re  De  Vau- 
ceue,  31  How.  Pr.  337 ;  Bowman  v. 
Cockrill,  6  Kan.  311 ;  Farmei-s'  Ins.  Co. 
V.  Highsmith,  44  Iowa,  330 ;  Town  of 
FLshkUlv.  FishkiU,22Barb.  634;  At- 
kinson V.  Duffy,  16  3Iinu.  49 ;  In  re 
Dept  Pubhc  Parks,  86  N.  Y.  437 ;  En- 
glish v.  State,  7  Tex.  App.  171 ;  Klein 
V.  Kinkead,  16  Nev.  194 ;  Ross  v.  Davis, 
97  Ind.  79. 

■'  In  re  IMayer,  50  N.  Y.  504. 

^  In  re  Upson,  89  N.  Y.  67. 

3  People  V.  Briggs,  50  N.  Y.  553, 
563. 


106  CONSTITUTIONAL   EEQTJIKEMENT,  ETC. 

general  subjects  capable  of  much  division ;  they  are  not  con- 
lined  to  the  mere  creation  of  a  corporate  entity.  Such  an  act 
defines  the  powers  of  the  corporate  body  and  regulates  their 
exercise.  An  act  to  incorporate  a  city  may  contain  provis- 
ions relating  to  the  various  subjects  upon  which  municipal  leg- 
islation may  be  required  for  the  preservation  of  the  peace,  the 
promotion  of  its  growth  and  prosperity,  and  for  the  raising  of 
revenue  for  its  government.^  It  may  confer  the  necessary  leg- 
islative, taxing,  judicial  and  police  powers  —  the  grant  of  them 
is  one  subject.-  The  whole  thing,  the  creation  of  the  munici- 
pahty,  is  that  subject ;  the  parts  of  it  are  separate  subjects,  but 
parts  of  one  general  subject.*  So  an  act  to  consolidate  a  city  and 
provide  for  its  government  embraces  but  one  subject.  It  may 
properly  embrace  the  details  for  uniting  different  municipali- 
ties, providing  for  the  payment  of  their  debts,  the  government 
of  the  cit}^,  and  all  the  minutia  to  which  the  general  adminis- 
tration of  its  affairs  would  lead.^  The  revision  of  an  act  which 
has  incorporated  a  municipality  announces  but  one  subject.  It 
may  treat  of  the  essential  parts  of  the  whole  as  well  as  may 
the  orio'inal  creative  enactment.^  An  act  to  revise  and  con- 
solidate  the  several  acts  in  relation  to  the  charter  of  a  city 
embraces  but  one  subject.  The  charter  consists  of  the  creative 
act  and  aU  acts  in  force  relating  to  the  corporation.  The  word 
consolidate  signifies  that  all  the  acts  are  to  be  brought  into 
and  re-enacted  in  one  act.  The  subject  is  broad  enough  to 
embrace  the  details  of  the  city  government.^  "  An  act  to  re- 
vise the  laws  providing  for  the  incorporation  of  raih'oad  com- 
panies, and  to  regulate  the  running  and  management,  and  to 
fix  the  duties  and  liabilities  of  all  railroad  and  other  corpora- 
tions owning  and  operating  any  railroad  in  this  state,"  covers 
but  one  object.  It  is  to  bring  together  the  legislation  con- 
cerning the  creation  and  management  of  raih'oads.''    An  act 

1  Loviisiana  v.  Pilsbury,  105  U.  S.        3 1± 

278 ;  City  of  Jacksonville  v.  Basnett,  *  Louisiana  v.  Pilsbuiy,  supra;  City 

20  Fla.  525 ;  People  v.  Briggs,  50  N.  Y.  of  Covington  v.  Voskotter,   80  Ky. 

560.  219 ;  State  v.  HaskeU  Co.  40  Kan.  65. 

2  Han-is  v.   People,  59  N,  Y.  599 ;  &  Harris  v.  People,  59  N.  Y.  602. 
Attorney-General  v.  Amos,  60  Mich.  6  People  v.  Briggs,  50  N.  Y.  560, 
372 ;  People  v.  Pond,  67  id.  98 ;  Peo-  561. 

pie  V.  Hui-st,  41  id.  328.  "^  Toledo,  eta  R  R  Co.  v.  Dunlap, 


CONSTITUTIO.N'AL    KEQUIKEMENT,  ETC.  107 

to  prescribe  the  manner  of  organizing  corporations,  public  or 
private,  is  prospective,  and  provides  the  mode  of  creating  new 
corporations.  In  such  an  act  provisions  to  modify  the  char- 
ter of  an  existing  corporation  is  a  new  subject,  not  germane 
to  the  title.'  An  act  so  entitled  will  operate  to  govern  the  in- 
corporation of  all  subsequent  companies ;  it  is  not  multifarious 
on  that  account,  but  an  act  which  in  terms  incorporates  several 
companies  is  so.- 

§  95.  The  subject  expressed  in  the  title  includes  not  only  all 
matters  which  are  constituent  parts  of  it,  but  all  matter  di- 
rectly incidental  to  it.'  An  act  "  concerning  drainage  "  in- 
cludes for  this  reason  assessments  upon  lands  benefited  to  pay 
the  expense.'*  An  act  providing  for  the  sale  of  school  lands 
may  define  the  rights  acquired  by  a  purchaser.*  So  a  grant  of 
lands  in  aid  of  a  public  improvement  may  contain  a  provision 
exempting  the  land  from  taxation  for  a  limited  time.^  An  act 
to  regulate  a  specified  business  may  prescribe  penalties  for 
violations  of  the  act.''  An  act  "  to  authorize  the  Utica  Water- 
Works  Company  to  increase  its  capital  stock  and  to  contract 
with  the  common  council  of  a  city  named  for  a  supply  of  water 
in  that  city  for  the  extinguishment  of  fires" was  held  to  em- 
brace but  one  subject,  namely,  the  giving  of  authority  to  two 
corporate  bodies  therein  named  to  enter  into  a  contract  for 
the  purpose  therein  specified.  The  power  to  increase  the  cap- 
ital of  the  company  was  given  simply  to  enable  it  to  raise  such 

47  Mich.  456 ;  Continental  Improve-  ^  Prescott  v.  Beebe,  17  Kan.   320. 

ment  Co.  v.  Phelps,  id.  299.  It  was  held  in  Swayze  v.  Britton,  17 

lAyeridge  v.  Tow-n  Commission-  Kan.  623,  that  an  act  "  concerning  no- 

ers,  60  Ga.  405 ;  City  CouncU  v.  Port  taries  public  "  was  not  broad  enough 

Eoyal,  74  Ga.  658.    See  State  v.  Clin-  to  include  a  provision    authorizing 

ton,  27  La  Ann.  40.  notaries  pubhc  protestuig   conimer- 

-Kingv.  Banks,  61  Ga.  20;  Ex  parte  cial  paper  to  give  notice  thereof  to 

Conner,  51  id.  571.  parties  secondarily  liable.     This  con- 

3  Central  Plk.  R.  Co.  v.  Hannaman,  elusion    cannot   be  reconciled  with 

22  Ind.  484 ;  Mayor,  etc,  v.  Reitz,  50  the  i-ule    of   construction   generally 

Md.  574 ;  City  of  St  Louis  v.  Green,  adopted. 

7  Mo.  App.  468 ;  Golden  Caual  Co.  v.  6  Board  of  Supervisors  v,  Auditor- 
Bright,  8  Colo.  144 ;  State  v.  Wlut-  General,  65  IMieli.  408. 
worth,  8  Lea,  504 ;  McGrath  v.  State,  '  Hartford  F.  lus.  Co.  v.  Raymond, 
46  Md  633 ;  Brown  v.  State,  73  Ga.  70  Mich.  485 ;  Weil  v.  State,  46  Ohio 
38 ;  Carson  v.  State,  69  Ala.  235 ;  Eug-  St  450 ;  Sykes  v.  People,  127  IlL  117 ; 
lish  v.  State,  7  Tex.  App.  171.  State  v.  Stunkle,  41  Kan.  456. 

*  Wishmier  v.  State,  97  Ind.  160. 


108  CONSTITUTIONAL    KEQUIEEMENT,  ETC. 

sums  of  money  as  might  be  necessary  for  a  performance  of  its 
contract ;  it  was  a  mere  incident  to  the  main  object.^  An  act 
to  establish  a  court  necessarily  includes  provisions  for  the  ap- 
pointment or  election  of  a  judge  and  other  oflBcers,  how  and 
by  whom  jurors  should  be  chosen  and  summoned.^  An  act  to 
make  further  provision  for  the  government  of  a  city  or  county 
is  one  to  provide  ways  and  means  for  its  support,  a  revenue 
act,  not  one  which  can  contain  any  provision  to  reorganize  or 
change  the  government  or  its  organic  law.^  Under  a  title  to 
enable  a  public  corporation  to  raise  money  by  tax,  provisions 
may  be  included  not  only  prescribing  the  procedure  to  assess 
and  collect  the  tax,  but  the  objects  may  be  designated  for 
which  the  money  is  to  be  raised,^  An  act  entitled  a  supple- 
ment to  "  An  act  concerning  taxes  "  is  not  open  to  the  objec- 
tion that  it  embraces  more  than  one  subject  expressed  in  its 
title  because  it  deals  with  several  details  of  the  matter  of 
taxes.-^  A  statute  embracing  only  one  general  subject,  indi- 
cated by  its  title,  is  constitutional,  no  matter  how  fully  it  may 
enter  into  the  details  of  that  subject.^  An  act  for  the  more 
rigid  collection  of  the  revenue  properly  provides  for  the  dif- 

1  Utica  Water-works  Co.  v,  Utica,  Co.  v.  Bright,  8  Colo.  144 ;  People  v. 
31  Hun,  426 ;  O'Meara  v.  Commission-    Goddard,  id.  433.     . 

ers,  3  T.  &  C.  236.  In  Ackley  School  District  v.  Hall, 

2  Commonwealtli  v.  Green,  58  Pa.  113  U.  S.  135,  was  considered  an 
St  233.  "  Act  to  authorize  independent  school 

3  Gaskin  v.  Meek,  42  N.  Y.  186 ;  districts  to  borrow  money  and  issue 
People  V.  O'Brien,  38  id.  193.  This  bonds  therefor  for  the  pm-pose  of 
last  case  decides  that  there  cannot  be  erecting  and  completing  school- 
included  in  a  revenue  bill  entitled  to  houses,  legalizing  bonds  heretofore 
give  authority  to  raise  money  by  tax  issued,  and  making  school  orders 
for  the  use  of  a  city  corporation,  and  draw  six  per  cent,  interest  in  certain 
regulating  its  disbursement,  a  provis-  cases,"  which  was  held  not  in  viola- 
ion  amending  the  charter  in  relation  tion  of  the  provisions  of  the  state 
to  the  official  term  of  councilmen  constitution  (Iowa),  that  "every  act 
and  the  time  of  their  election-  See  shall  embrace  but  one  subject  and 
Huber  v.  People,  49  N.  Y.  132.  matter  properly  connected  tlierewith, 

*  Sun  Mut  Ins.  Co.  v.  Mayor,  etc.  8  which  subject  shall  be  expressed  in 

N.  Y.  252 ;  Sharp  v.  IMayor,  etc.  31  the  title." 

Barb.  572-575 ;  Smith  v.  Mayor,  etc.  The  act  is  thus  summarized  ua  the 

34  How.  Pr.  508.  opinion  of  the  com-t : 

s  Kirkpatiick  v.  New  Brunswick,  40  "The  act  contains  six  sections,  the 

N.  J.  Eq.  46 ;  Brown  v.  State,  73  Ga.  38.  fourth    providing    that    '  all    school 

6  Crawf ordsville,     etc.     T.    Co.    v.  orders  shall  draw  six  per  cent  inter- 

Hetcher,  104  Ind,  97 ;  Golden  Canal  est  after  havmg  been  presented  to 


CONSTITUTIONAL    REQUIREMENT,  ETC. 


100 


ferent  classes  of  taxes  and  defines  tlie  duties  of  officers  charged 
with  their  collection.  It  may  define  the  jurisdiction  of  justices 
in  revenue  cases  and  prescribe  the  practice.^  An  act  "  to  reg- 
ulate the  use  of  water  for  irrigation,  and  providing  for  settling 
the  priority  of  rights  thereto,  and  for  payment  of  the  expenses 
thereof,  and  for  payment  of  all  costs  and  expenses  incident  to 
said  regulations  and  use,"  is  only  equivalent  to  the  briefer  title 
which  might  have  been  adopted :  An  act  to  regulate  the  use 
of  water  for  irrigation.  This  was  held  to  be  the  controlling 
purpose  of  the  law ;  that  the  rest  of  the  title  refers  to  nothing 
which  is  not  germane  to  the  subject  thus  expressed.  Inci- 
dental to  a  proper  regulation  of  the  use  of  water  diverted  from 
natural  streams  in  (Colorado)  is  a  determination  of  the  prior- 
ities of  water  rijrhts.^ 


the  treasurer  of  the  district  and  not 
paid  for  want  of  funds,  wliich  fact 
shall  be  indorsed  upon  the  order  by 
the  treasui'er.'  As  there  are  two 
kinds  of  school  districts  in  Iowa, 
*  district  township '  and  '  independent 
disti-ict,'  —  the  latter  carved  out  of 
the  former, —  it  is  contended  that  the 
title  to  the  act  in  question  embraces 
two  subjects:  one  relating  to  mat- 
ters in  which  independent  school 
districts  alone  are  concerned,  and  the 
other  to  matters  in  wliich  the  town- 
ship disti'ict  and  independent  districts 
are  concerned ;  that  whether  school 
orders,  which  may  be  issued  for 
many  purposes,  by  districts  of  either 
kind,  shovdd  bear  interest  or  not,  is 
whoUy  foreign  to  the  borrowing  of 
money  to  build  school-houses  in  in- 
dependent districts.  Iowa  Code, 
1873,  ch.  9,  tit.  12. 

"  We  are  not  referred  to  any  adju- 
dication by  the  supreme  court  of 
Iowa  which  supports  the  point  here 
made.  On  the  contrary  the  princi- 
ples annoimced  in  State  v.  Coimty 
Judge,  2  Iowa,  281,  show  that  the  act 
before  us  is  not  liable  to  the  objection 
that  its  title  embraces  more  tlian  one 


subject  .  .  .  The  doctrines  of 
that  case  have  been  approved  by  the 
same  court  in  subsequent  decisions, 
and  they  are  decisive  against  the 
point  here  raised.  Morf  ord  v.  Unger, 
8  Iowa,  83 ;  Davis  v.  "VVoolliough,  9 
id.  104 ;  People  v.  BrisUn,  70  lU.  423 ; 
McAm-ich  v.  R  R  Co.  20  Iowa,  342 ; 
Farmers'  Ins.  Co.  v.  Highsmith,  44 
Iowa,  334.  The  general  subject  to 
which  this  special  act  relates  is  the 
system  of  common  schools.  Tliat 
sj'stem  is  maintained  tlirough  the 
instrumentality  of  district  schools  of 
different  kinds.  Provisions  in  re- 
spect to  these  insti'umentahties  — 
those  referring  to  the  erection  and 
completion  of  school-houses  in  inde- 
pendent school  districts  with  money 
raised  upon  negotiable  bonds,  and 
others,  to  the  rate  of  interest  which 
all  school  orders  shall  bear  —  relate 
to  the  same  general  object  and  are 
only  steps  towards  its  accomplish- 
ment." 

1  State  V.  "Whit^vorth,  8  Lea,  594 ; 
Ensign  v.  Barse,  107  N.  Y.  329.  See 
State  v.  Wardens,  23  La.  Ann.  720. 

2  Golden  Canal  Co.  v.  Bright,  8  Colo. 
144 


110  CONSTITUTIOXAL    REQUIREMENT,  ETC. 

§  96.  A  subject  expressed  in  the  title  includes  all  subsidiary 
details,  which  are  means  for  carrying  into  effect  the  object  or 
purpose  of  the  act  disclosed  in  that  subject.'  An  act  to  in- 
corporate a  raih-oad  or  other  like  comj^any  may,  besides  grant- 
ing its  corporate  powers,  confer  on  townships  or  municipalities 
through  which  its  road  passes,  or  which  otherwise  derive  a 
public  advantage  from  the  enterprise  and  improvement  of  such 
company,  power  to  subscribe  to  the  capital  stock  of,  or  make 
donations  to,  the  company ;  and  it  may  provide  for  elections  to 
decide  as  to  such  subscriptions  or  donations ;  for  taxation  to 
pay  such  subscriptions  or  donations,  if  voted ;  and  for  the  issue 
of  bonds  to  represent  the  same.'^  It  may  also  provide  for  the 
personal  liability  of  stockholders  for  labor.*  A  charter  to 
create  an  institution  for  the  education  of  young  men  presents 
a  subject  which  embraces  everything  which  is  designed  to 
faciUtate  that  object ;  everything  intended  and  adapted  to  pro- 
mote the  well-being  of  the  institution  or  its  students.*  An  act 
to  establish  a  house  of  refuge  for  the  correction  and  reforma- 
tion of  juvenile  offenders  may  include  an  appropriation,  not 
only  of  money,  but  land  with  directions  for  its  sale.'  An  act 
incorporating  a  bank  may  provide  that  all  parties  hable  on 
any  bill  negotiated  at  the  bank  may  be  sued  in  one  action.® 
An  act  for  the  benefit  of  a  turnpike  company  may  authorize 
it  to  borrow  money  and  to  execute  mortgages  to  secure  its 
payment ;  to  sell  the  road,  right  of  way,  etc.,  applying  the 

1  Farmers'  Ins.  Co.  v.  Higlismith,  15  id,  20;  Fireman's  Benefit  Assoc 
44  Iowa,  330 ;  State  v.  Tucker,  46  Ind  v.  Lounsbmy,  21  ILL  511 ;  People  v. 
355 ;  State  v.  Baum,  33  La.  Ann.  981 ;  Loewenthal,  93  BL  191 ;  City  of  Vir- 
AUen  V.  Tison,  50  Ga.  374 ;  Brown  v,  den  v.  AUan,  107  id.  505 ;  Slack  v. 
State,  78  Ga,  38 ;  McArthur  v.  Nel-  Jacob,  8  W.  Va.  640 ;  Hope  v.  Gains- 
son,  81  Ky.  67 ;  State  v.  McConneU.  3  viUe,  72  Ga  246 ;  Unity  v.  Burrage, 
Lea,  332;  Smith  v.  Boliler,  72  Ga.  103  U.  S.  447;  San  Antonio  v.  Me- 
546 ;  Farmers'  L.  &  T.  Co.  v.  Oregon,  haffy,  96  U.  S.  312 ;  Binz  v.  Weber, 
etc.  R.  R.  Co.  24  Fed.  Rep.  407 ;  Floyd  81  IlL  288 ;  People  v.  Brislin,  80  ILL 
V.  Perrin,  30  S.  C.  1 ;  Fahey  v.  State,  423. 

27  Tex.  App.  146.  3  Sh  pley    v.  Terre  Haute,  74  Ind. 

2  Mahomet    v.    Quackenbush,    117    297. 

U.  S.  508;  Town  of  Abmgton  v.  Ca-  ^O'Leary  v.  County  of  Cook,  28  IIL 

been,    106  ILL   200 ;  S.  C.  12  Am.  &  534. 

Eng.  R.  R.  Cas.  581 ;  Connor  v.  Green  sMcCaslin   v.  State,  44  Ind.  155; 

Pond,  etc.  R.  R.  Co.  23  S.   C.  427 ;  Klem  v.  Kinkead,  16  Nev.  194. 

Board   of  Super,  v.  People,  25  IlL  6  Davis  v.  Bank  of  Fulton,  31  Ga.  69. 
181 ;  BeUville  R  R.  Co.  v.  Gregory, 


CONSTITUTIONAL   KEQDIEEMENT,  ETC.  Ill 

proceeds  to  the  payment  of  its  debts ;  may  authorize  a  judicial 
sale  at  the  instance  of  creditors  giving  the  purchaser  the  rights 
and  powers  of  the  company.^  An  act  to  estaljlish  state  depos- 
itaries and  prescribe  their  duties  and  liabilities  will  cover  pro- 
visions requiring  a  bond,  and  regulating  the  enforcement  of  it 
in  case  of  default.-  A  statute  of  limitations  may  be  inserted 
in  a  tax  law  for  the  purpose  of  aiding  and  assisting  in  the  col- 
lect ion  of  taxes.'  As  a  means  of  enforcing  a  law  for  regulat- 
ing and  licensing  the  sale  of  intoxicating  liquors,  it  may  pro- 
vide that  a  house  where  such  Hquors  are  sold,  if  kept  in  a  dis- 
orderly manner,  may  be  deemed  a  common  nuisance ;  that  so 
keeping  it  shall  cause  a  forfeiture  of  the  license,  and  subject 
the  proprietor  to  a  fine.*  For  a  like  purpose  the  act  may  pro- 
vide that  the  applicant  for  a  license  shall  give  a  bond  to  the 
state  conditioned,  among  other  things,  that  he  will  pay  all 
fines  and  costs  that  may  be  assessed  against  him  for  violating 
the  provisions  of  the  act.^  As  a  means  of  enforcing  the  pay- 
ment of  a  special  tax  on  dealers  in  liquors,  it  is  germane  to 
provide  that  upon  failure  to  pay  such  tax  the  dealer  may  be 
indicted  and  punished  for  a  misdemeanor.^  An  act  entitled 
"to  prevent  deception  in  the  sale  of  dairy  products,  and  to 
preserve  the  public  health,"  goes  beyond  its  title  in  making  the 
manufacture  of  imitation  butter  a  crime.^  A  provision  for 
submitting  an  act  or  any  question  on  which  its  operation  de- 
pends to  a  popular  vote  is  germane  to  the  subject  or  object 
of  such  act,  and  is  a  means  to  facilitate  its  execution,^ 

§  97.  The  subject  or  object  stated  generally  in  the  title 
includes  the  abolition  of  things  inconsistent  —  Cases  of  sub- 
stitution.—  It  is  germane  to  the  subject  of  an  act  to  repeal 
previous  acts  relating  to  it.^    Such  repeal  is  ancillary  to  the  pur- 

1  Louisville,  etc.  Co.  v.  Ballard,  2  Wajnie  Circuit  Judge,  58  IMich.  381 ; 

Met  (Kj.)  165.  S.  C.  55  Am,  R  693.    See  People  v. 

'i  Seay  v.  Bank  of  Rome,  66  Ga.  609.  Arensberg,  105  N.  Y.  123. 
See  Wardle  v.  Townseiid,  75  Mich.        *City  of  Virdeu  v.  Allan,  107  HL 

385.  505 ;  Caldwell  v.  Barrett,  73  Ga.  604 ; 

'Bowmanv.  Cockrill,  6Kan.  311.  Simpson  v.   BaUey,  3  Oregon,   515; 

*  Fletcher    v.   State,   54    Ind.   462 ;  Unity  v.  Burrage,  103  U.  S.  447. 
O'Kane  v.  State,  69  Ind.  183.  a  YeUow  River  Imp.  Co.  v.  Arnold, 

5  Kane  v.  State,  78  Ind.  103.  46  Wis.  215 ;  State  v.  Countj-  Com'rs. 

3  Brown  v.  State,  73  Ga.  38 ;  Howell  13  Am.  &  Eng.  Cor.  Cas.  203 ;  Gabbert 

V.  State,  71  Ga.  224.  v.  JeffersonvUle  R  R  Co.  11  Ind.  365 ; 

■^  Northwestern     Manuf 'g     Co.    v.  Burke  v.  Monroe  County,  77  UL  610 ; 


112  CONSTITUTIONAL    REQUIREMENT,  ETC. 

pose  of  the  new  legislation.  When  one  legislative  scheme  or 
system  is  intended  to  supersede  another,  the  subject  of  the  act 
which  makes  the  change  naturally  includes  the  removal  of  the 
existing  legislative  institution  intended  to  be  abolished  or  re- 
organized, in  whole  or  in  part,  and  the  establishment  of  the 
new  in  its  place.^  One  act  may  divide  the  state  into  judicial 
circuits  for  judicial  purposes,  provide  for  election  of  judges, 
fix  the  time  for  holding  courts ;  also  abolish  an  existing  court, 
nd  transfer  its  unfinished  business  to  the  new  court .'^  So  one 
act  properly  includes  all  provisions  for  effecting  the  change  of 
a  steam  railroad  running  in  a  tunnel  in  the  street  of  a  city  to 
a  surface  railway,  including  the  subject  of  compensation  to  the 
owner  of  the  raiboad  and  raising  the  means  to  pay  it.^  It 
may  happen,  when  23artial  substitutions  occur,  that  a  residuum 
of  the  previous  state  of  things  will  remain,  in  a  disrupted  con- 
dition, requiring  some  fresh  legislation  not  germane  to  the 
disrupting  act.  In  such  case  the  whole  situation  will  not  be . 
re-arranged  by  one  act.  The  unity  of  the  original  condition 
being  destroyed,  the  validity  of  the  new  legislation  will  de- 
pend on  its  own  subject  being  single.'* 

§  98.  Acts  which  relate  to  a  plurality  of  similar  suhjects.— 
Such  subjects  may  be  grouped  and  treated  as  a  class  for  gen- 
eral legislation  embracing  all  or  a  part.  There  is  evident  in 
the  later  constitutions  a  strong  preference  for  such  legisla- 
tion, and  against  special,  where  general  acts  are  appropriate 
and  practicable.  Generalizations  to  answer  all  cognate  wants 
require  preparation  and  reflection.  A  particular  need  first 
attracts  the  attention  of  the  legislator,  and  when  he  proceeds 
to  frame  a  measure  with  reference  to  it,  how  comprehensive 
he  will  make  it  depends  on  his  leisure,  his  courage,  his  capacity 
and  his  public  spirit.  There  is  a  marked  difference  between 
an  act  treating  of  individual  subjects  as  such,  and  embracing 
more  than  one,  and  an  act  which  aims  at  a  single  purpose 

Martin  v.  Hewitt,  44  Ala.  418 ;  Tol-  Bush,    108 ;    State    v.  McConnell,   3 

ford  V.  Church,  66  Mich.  431 ;  State  v.  Lea.  332 ;  Mullen  v.  State,  34  Ind.  540 ; 

Aidman,  76  Iowa,  624;  Muldoon  v.  Phillips  v.  Mayor,  etc.  1   Hilt  483; 

Levi,  25  Neb.  457.    See  Ridge  Avenue  Supervisors  v.  Heenan,  2  Minn.  (281), 

R'y  Co.  V.  Philadelpliia,  124  Pa.  St  333. 

219.  -  State  v.  Tucker,  46  Ind.  355. 

1  Luehrman  v.  Taxing  Dist  2  Lea,  3  People  v.  Lawrence,  41  N.  Y.  137. 

425 ;     Smith    v.    Commonwealth,     8  ^  Cuthp  v.  Sheriff,  3  W.  Va.  58a 


CONSTITUnONAL   KEQUIREMENT,  ETC. 


113 


involving  a  plurality  of  subjects,  and  concerning  all  of  them, 
or  several  of  them.  The  former  is  generally  multifarious;' 
the  latter  valid  as  dealing  with  a  unity.  One  general  law 
may  provide  how  all  municipal  corporations  may  be  organ- 
ized, how  all  private  corporations  may  be  formed;  but  one 
act  to  create  two  corporations  is  void  for  duplicity.^  One  act 
may  define  all  the  crimes,  or  all  belonging  to  one  class ; '  but 
one  act  which  creates  two  separate  offenses  deals  with  two 
subjects.''  The  multiplicity  of  persons  or  things  which  will 
be  affected  by  the  legislation  is  immaterial  if  the  subject  be 
single.  An  act  authorizing  two  counties  to  issue  bonds  to 
erect  a  court-house  in  each  was  held  to  embrace  but  one  sub- 
ject— that  of  building  court-houses.*  Such  an  act  might  prop- 
erly embrace  all  counties.  That  it  is  not  so  general,  and  only 
applies  to  two,  does  not  affect  this  question.  It  may  have 
been  as  extensive  as  the  occasion  in  the  state  required.  But 
where  the  legislation  concerns  separate  things  without  unity  in 
any  consideration  or  purpose  it  is  within  the  constitutional  in- 
hibition. Thus  a  law  provided  for  the  expenditure  of  certain 
highway  taxes  on  two  distinct  state  roads,  and  for  the  loca- 
tion and  construction  of  a  third  state  road,  and  for  the  expend- 
iture of  certain  other  taxes  upon  that ;  it  was  held  to  embrace 
more  than  one  subject.  The  three  roads  were  held  to  be 
"  three  distinct  objects  of  legislation,"  which  might  with  en- 
tire propriety  have  been  provided  for  by  separate  acts ;  and, 
indeed,  ought  to  have  been,  in  view  of  the  care  which  is  taken 
by  the  constitution  to  compel  each  distinct  object  of  legisla- 
tion to  be  considered  separately.^ 

'  In  re  Paul,  94  N.  Y.  497 ;  State  v.  from  expressing  by  their  votes  their 
Harrison,  11  La.  Ann.  722.  opinion   upon    each  sepiu-ately,  but 
'^King  V.   Banks,  61  Ga,  20;    Ex  they  are  so  united  as  to  unite  a  eom- 
parte  Connor,  51  id  571.  bination  of  interest  among  the  friends 
'  State  V.  Brassfield,  81  Mo.  163.  of  each  in  order  to  secure  the  success 
*  In  re  Paul,  siq^i'O,  of  all,  when,  perhaps,  neither  could 
s  Allen  V.  Tison,  50  Ga.  374 ;  Wey-  be  passed  separately.    The  evils  of 
and  V.  Stover,  35  Kan.  545.  that  species  of  omnibus  legislation 
« People  v.  Denahy,  20  Mich.  349.  which  the  constitution  designed  to 
Cooley,  J.,  delivering  the  opinion  of  prohibit  ai-e  all  invited  by  acts  thus 
tlie  court,  said :    "  These  objects  have  framed ;  and  although  we  have  no 
certainly  no  7iec€ssary  connection^  and  reason  to  suppose  tliat  those  evils  act- 
being  grouped  together  in  one  bill,  ually  existed  in  the  present  case,  or 
legislators   are   not   only  precluded  that  there  was  any  purpose  on  the 
8 


114  CONSTITUTIONAL    KEQUIKEMENT,  ETC. 

In  Daubman  v.  Smith '  the  act  was  entitled  "  to  transfer  the 
charge  and  keeping  of  the  jails  and  the  custody  of  the  prison- 
ers in  the  counties  of  Essex  and  Hudson  from  the  sheriff  to  the 
board  of  chosen  freeholders,  and  for  the  employment  of  pris- 
oners, and  to  regulate  the  term  of  service  therein."  Magie,  J,, 
said,  in  delivering  the  opinion  of  the  court :  "  I  am  compelled 
to  the  conclusion  that  the  legislation  in  question  is  in  obvious 
opposition  to  the  constitutional  provision  in  one  or  the  other 
of  its  phases.  For,  if  the  object  of  this  act  may  be  taken  to 
be  the  regulation  of  the  jails  and  the  custody  of  the  prisoners 
in  the  two  counties  named  in  the  first  eight  sections,  then  the 
ninth  section,  in  providing  for  the  extension  of  the  scheme  to 
other  counties,  introduces  another  and  different  object,  and  the 
act  embraces  more  than  one  object.- 

"  If,  on  the  other  hand,  the  object  of  this  act  may  be  taken  to 
be  the  regulation  of  the  jails  and  then  of  the  prisoners  in  all 
the  counties  of  the  state,  then  that  object  is  not  expressed  in 
the  title.  If  such  was  the  object  of  the  act,  the  fact  that  with 
respect  to  some  counties  it  was  mandatory,  and  with  respect 
to  others  optional,  might  not  be  objectionable.     The  matters 

part  of  the  legislature  to  disregard  special  and  peculiar  legislation  in  re^ 

the  constitutional   requirement,  yet  spect  to  which  the  roads  have  no  nec- 

we  cannot  be  governed  by  these  con-  essary  connection.     A  combination 

siderations,  if  the  act  is  of  a  class  of  that  description  would  at  once  be 

which  is  actually  prohibited.  pronounced  vmconstitutional  by  gen- 

'■  The  act,  it  will  be  seen,  is  not  one  era!  consent,  but  would  not  differ  at 
which  establishes  a  general  system  aU,  in  principle,  from  the  present  act, 
for  the  expenditure  of  nou-i'esident  in  which  the  combination  of  objects 
highway  taxes,  or  for  the  constmc-  is  equally  apparent,  and  equally  un- 
tion  of  state  roads.  It  singles  out  necessary  for  the  proper  pui-pose  of 
two  state  roads  and  provides  for  the  legislation.  The  only  difference  there 
expenditure  of  certain  non-resident  could  be  in  the  two  cases  would  be 
highway  taxes  upon  each.  It  then  that,  in  a  case  of  a  combination  of  in- 
proceeds  to  provide  for  the  location  terests  among  powerful  corporations 
and  construction  of  a  third  state  road  to  secure  favorable  legislation  on  their 
and  the  expenditure  of  certain  other  behalf,  a  purpose  to  evade  the  con- 
taxes  upon  that.  stitutional  requirement  would  gen- 

"  The  three  objects  are  as  separate  erally  be  very  apparent,  while  in  tliis 

and  distinct  as  the  three  great  lines  case  we  do  not  imagine  it  to  have 

of  railroad  crossing  the  state,  and  the  existed  at  aU ;  but  the  question  of 

same  arguments  which  might  be  ad-  violation  of  the  constitution  is  not  a 

vanced  in  support  of  this  act  would  question  of  intent" 
support    also    an    act  which  would        '  47  N.  J.  L.  200. 
4Bingle  out  those  three  railroads  for        2  in  re  Sackett,  etc.  Sts.  74  N.  Y.  95. 


CONSTITUTIONAL   REQUIREMENT,  ETC.  115 

comprehended  in  the  act  would  seem  to  be  germane  to  such  an 
object.  But  the  title  does  not  express  such  an  object."  The 
act  had  more  scope  than  the  title,  and  the  excess  was  so  much 
as  applied  to  a  county  not  named  in  the  title. 

§  99.  A  curative  act  may  apply  to  any  number  of  instm- 
ments  or  proceedings.  One  act  legalized  the  proceedings  in 
three  separate  towns,  though  taken  distinct  from  each  other, 
to  issue  bonds  in  aid  of  a  railroad.  By  miscarriage  of  some 
promoters  of  them  they  failed  to  comply  with  the  law  under 
which  they  were  set  on  foot,  so  as  not  to  be  efficacious.  It  was 
held  that  the  bill  contained  but  one  subject.'  The  court  said 
it  was  a  local  bill,  to  have  effect  upon  that  separate  portion  of 
the  state.  The  object  of  it  was  to  legalize  and  validate  certain 
doings  in  that  territory,  which,  although  carried  on  distinct 
from  each  other,  had  a  common  aim  and  purpose.  So  an  act 
to  confirm,  reduce  and  levy  certain  assessments  in  the  city  of 
B.  was  held  to  embrace  but  one  subject.'^ 

§  100.  One  act  may  relate  to  all  or  a  portion  of  the  courts 
of  a  state  in  defining  their  jurisdiction  or  regulating  their  prac- 
tice. In  the  Matter  of  Wakker,''  an  act  in  relation  to  justices 
and  police  courts  of  New  York  was  held  not  to  be  obnoxious 
to  constitutional  objection  on  account  of  two  courts  being  the 
subject  of  legislation.  The  court  say :  "  It  was  the  object  of 
this  law  to  establish  justices'  courts  of  civil  and  criminal  juris- 
diction within  this  city,  and  to  abolish  such  minor  jurisdictions 
as  stood  in  the  way  of  the  courts  to  be  created.  The  well- 
known  jurisdiction  of  justices  of  the  peace  for  the  country  is 
dii  [dc<\  by  this  statute  between  the  new  justices  created  by  it, 
upon  one  set  of  whom  is  conferred  the  civil  and  upon  the  other 
the  criminal  jurisdiction  of  the  country  magistrates.  The  office 
of  justice,  its  tenure  and  jurisdiction,  and  the  compensation  of 
its  incumbents  are  provided  for,  and  clerks  are  ordered  and 
compensated  by  this  law."  It  provided  also  that  its  provisions 
should  be  applicable  to  the  justices  and  clerk  of  the  marine 
court.  That  court  was  substantially  a  justice's  court,  it  being 
distinguishable  only  by  having  additional  jurisdiction  in  certain 
marine  cases  not  cognizable  by  justices.  On  this  point  the 
court  s&j :  "  It  would  bo  giving  an  undue  importance  to  this 

>  Rogers  V.  Stephens,  86  N,  Y.  623.    3  3  Barb.  162. 
2  In  re  Van  Antwerp,  1  T.  &  C.  423. 


116  CONSTITUTIONAL    EEQUIEEMENT,  ETC. 

one  feature  in  respect  to  jurisdiction  to  hold  that  this  alone 
deprived  it  of  the  character  of  a  justice's  court,  while  it  pos- 
sessed all  the  main  characteristics  of  that  tribunal.  It  is  still 
a  coui't  of  inferior  and  limited  jurisdiction,  conducted,  in  all 
respects  material  to  this  argument,  as  a  justice's  court.  If  this 
be  correct,  then,  in  the  strictest  construction  of  the  article  of 
the  constitution  under  consideration,  a  statute  in  relation  to 
justices'  courts,  confined  to  the  organization  and  regulation  of 
these  courts,  may  properly  embrace  in  its  provisions  the  ma- 
rine court." 

An  act  was  held  valid  in  Kentucky  which  regulated  the 
jurisdiction  of  several  courts,  the  inferior  courts  of  the  state. 
It  was  an  act  to  regulate  the  civil  jurisdiction  of  justices  of  the 
peace,  police  judges  and  quarterly  courts,  and  the  appellate 
jurisdiction  of  the  circuit  courts  on  appeals  from  their  judg- 
ments, and  to  authorize  the  quarterly  courts  to  appoint  clerks. 
The  act  was  treated  as  one  to  regulate  the  jurisdiction  of  sev- 
eral of  the  courts  of  the  state.  The  subject  was  deemed 
single.^ 

§  101.  The  title. and  subject  of  amendatory  and  supple- 
mentary acts. —  The  constitutional  requirement  under  discus- 
sion as  applied  to  acts  of  this  character  when  they  contain 
matter  which  might  appropriately  have  been  incorporated  in 
the  original  act  under  its  title  is  satisfied  generally  if  the 
amendatory  or  supplemental  act  identifies  the  original  act 
by  its  title,  and  declares  the  purpose  to  amend  or  supple- 
ment it.-  Under  such  a  title,  alterations  by  excision,  addition 
or  substitution  may  be  made.* 

1  AUen  V.  HaU,  14  Bush,  85,  46  Wis.  214,  224 ;  Hoffman  v.  Par- 

2  State  Line,  etc.  R  R.  Ca's  Appeal,  sons,  27  ]\Iinn.  236 ;  Jones  v,  Colum- 
77  Pa.  St  429 ;  Craig  v.  First  Presb.  bus,  25  Ga  610 ;  City  of  St  Louis  v. 
Chiu-ch,  88  id.  42 ;  IVIiUvale  Borough  Tief el,  42  Mo.  578 ;  State  v.  Newark, 
V.  Evergreen  R'y  Co.  131  id.  1 ;  Sec-  34  N.  J.  L.  236 ;  Robinson  v.  Lane,  19 
end  German  Am.  R  Asso.  v.  New-  Ga.  337 ;  Perry  v.  Gross,  25  Neb.  826 ; 
man,  50  Md.  62 ;  Swartwout  v.  Rail-  Williamson  v.  Keokuk,  44  Iowa,  88 ; 
road  Co.  24  Mich.  389;  Gibson  v.  National  Bank  v.  Com'rs,  14  Fed. 
State,  16  Fla.  291 ;  Morford  v.  Unger,  Rep.  239 ;  Saunders  v.  ProTisional 
8  Iowa,  82;  People  v.  WiUsea,  60  Municipality,  24  Fla.  226;  Alber- 
N.  Y.  507 ;  Brandon  v.  State,  16  Ind.  son  v.  Mayor,  82  Ga.  80.  See  Hy- 
197 ;  Mills  v.  Charleton,  29  Wis.  400 ;  man  v.  State,  87  Tenn.  109 ;  Hyde 
YeUow  River  Imp't  Co.  v.  Arnold,  Park  v.   Cliicago,  124  IlL  156.     But 

'  Robinson  v.  Lane,  supra. 


CONSTITUTIONAL   REQUIREMENT,  ETC. 


117 


It  is  not  enough  to  refer  to  the  original  act  merely  by  the 
number  of  the  chapter  of  published  laws  which  includes  it.^ 


see  State  v.  Smith,  35  Minn.  257.  In 
tliat  case  it  appears  that  outeide  of 
the  general  law  for  the  assessment 
and  collection  of  taxes  an  independ- 
ent or  cumulative  act  in  pari  materia 
was  in  force  requiring  notice  of  the 
expiration  of  redemption  after  a  tax 
eaJe.  A  subsequent  statute,  entitled 
generally  as  an  act  to  amend  the  gen- 
eral law,  contained  a  iirovision  ex- 
pressly repealing  this  separate  stat- 
ute, which  was  probably  equivalent 
to  providing  that  redemption  should 
expire  absolutely  by  lapse  of  the  re- 
demption i^eriod  without  notice  to 
the  party  who  had  the  right  of  re- 
demption. This  was  matter  germane 
to  the  origiual  bill  which  was 
amended,  and  xuider  tlie  iiile  stated 
in  the  text  the  title  was  sufficient 
The  court,  however,  held  otherwise, 
and  Dickinson,  J.,  deUverkig  the 
opinion  of  the  com-t,  said :  "  An 
amendatory  law  is  for  the  amend- 
ment not  of  what  might  have  been 
enacted  imder  the  title  of  the  original 
statute,  but  of  what  wa^  enacted; 
not  of  what  the  original  law  might 
have  been,  but  of  what  it  was.  Hence 
the  sufficiency  of  the  title  of  an  act 
merely  declared  to  be  amendatory  of 
a  prior  law,  to  justify  the  legislation 
which  may  be  enacted,  under  it,  de- 
pends not  alone  upon  the  fact  that 
the  title  of  the  original  statute  was  so 
comprehensive  that  the  legislation 
might  have  been  properly  enacted  in 
such  jirior  law,  but  it  depends  also 
upon  the  nature  and  extent  of  the 
prior  enactment  to  amend  which  is 
the  declared  purpose  or  subject  of  the 
latter  act  This  seems  self-evident ; 
but  to  test  the  correctness  of  the  nile 
invoked,  let  us  apply  it  to  supposable 
cases.    We  wiU  assume  that  under 


the  title  of  the  law  of  1878,  "  An  act 
to  provide  for  the  assessment  and 
collection  of  taxes,"  the  only  legisla- 
tion adopted  had  been  a  change  of 
the  prior  law  in  respect  to  the  time 
of  meeting  of  the  state  board  of 
equalization  or  of  the  manner  of  pub- 
lishing the  delmquent  list  Kow, 
suppose  a  later  act  declared  in  its 
title  to  be  amendatory  of  that  act  to 
consist  of  two  sections;  the  fii-st 
amending  the  prior  act  by  j^rescrib- 
ing  a  different  time  for  tlie  meeting 
of  the  state  board  or  a  different  man- 
ner of  publishing  the  deLinqueut  list 
The  second  section,  we  will  suppose, 
simply  declares  the  repeal  of  section 
2  of  a  law  of  1873  (Sp.  Laws,  1873, 
ch.  Ill),  authorizing  raUi'oad  corpo- 
rations to  adopt  the  scheme  of  substi- 
tuted taxation  in  that  act  provided ; 
or  let  the  supposed  second  section  de- 
clare the  repeal  of  the  law  of  1877 
(chapter  105),  which  requii'ed  an  an- 
nual rettu-n  by  raih-oad  corporations 
of  land  sold  from  then  untaxable 
land  grant,  so  that  the  same  might 
be  properly  subjected  to  taxation ;  or 
again,  let  the  supposed  second  section 
be  hke  that  now  in  question, —  simply 
the  repeal  of  the  act  of  1877,  respect- 
ing the  giving  of  notice  of  the  expira- 
tion of  the  period  for  redemption; 
or  let  us  suppose  that  the  so-called 
amendatory  act  had  consisted  only  of 
such  repeal  of  the  law  of  1877.  In 
such  cases  the  mind  is  at  once  im- 
pressed with  the  tncongi-uity  between 
the  subject  of  the  act  as  expi-essed  in 
its  title  and  the  enactment  imder  it 
Yet  the  principle  relied  upon  by  the 
respondent  would  sustain  such  legis- 
lation, because  it  might  have  been 
adopted  under  the  title  of  the  orig- 
inal law.    The  fault  in  the  assei'ted 


1  People  V.  Hills,  35  N.  Y.  449. 


118 


CONSTITTTTIOISrAL   EEQUIEEMENT,  ETC. 


The  true  and  actual  subject  or  object  must  be  expressed  in 
the  title  and  not  by  way  of  reference  to  somethmg  else  to 
show  it.^ 

An  act  entitled  to  amend  the  charter  of  a  named  municipal 
corporation  may  contain  a  provision  changing  the  territorial 
boundary  of  the  municipality.^  Under  such  a  title  provisions 
have  sometunes  been  enacted  curing  defects  in  and  validating 
municipal  proceedings  taken  of  course  subsequent  to  the  en- 
actment of  the  original  charter.  Such  provisions  are  germane 
to  the  object  of  the  incorporation,  but  not  to  the  function  or 
act  of  creating  a  corporation,  prescribing  and  distributing  its 
powers,  and  regulating  th^ir  exercise.  Such  curative  provis- 
ions are  retrospective,  and  are  not  of  the  nature  of  a  charter,^ 
while  the  original  act  is  constitutive  and  wholly  prospective.* 

§  102.  Provisions  in  an  act  not  within  tlie  subject  ex- 
pressed in  tlie  title. —  The  title  of  an  act  defines  its  scope ;  it 
can  contain  no  valid  provision  beyond  the  range  of  the  subject 
there  stated.^    A  title  importing  a  prospective  statute  wUl 


rule  is  that  it  does  not  regard  the 
nature  and  extent  of  the  original  en- 
actment which  it  is  the  declared  pur- 
pose of  the  later  act  to  amend,  but 
only  the  title  of  it ;  it  rests  upon  the 
assmnption  that  the  enactment  was 
as  comprehensive  as  imder  its  title  it 
nught  have  been.  We  think  it  can- 
not be  rehed  upon  to  aid  in  the  de- 
termination of  such  cases,  and,  if 
recognized  as  a  lode  without  qualifi- 
cation, that  it  would  open  a  way  to 
the  accomplishment  of  the  very  evils 
which  the  constitutional  provision 
was  intended  to  prevent."  Re-afi&i"med 
in  State  ex  reL  Nash  v.  Madsou,  45 
N.  W.  Rep.  856. 

1  Id. ;  People  v.  Briggs,  50  N.  Y.  553 ; 
Tingue  v.  Port  Chester,  101  N.  Y. 
294,  303 ;  People  v.  Flemmg,  7  Colo. 
231 ;  Pennington  v.  Woolf  oik,  79  Ky. 
13,  It  was  decided  in  State  v.  Gar- 
rett, 29  La.  Ann.  637,  that  parts  of  a 
statute  could  be  repealed  by  refer- 
ence to  the  numbers  of  the  sections 
repealed-    But  see  Second  German 


American  Banking  Association  v. 
Newman,  supra. 

2  Wliiting  V.  Mt.  Pleasant,  11  Iowa, 
482 ;  Morf ord  v.  Unger,  8  Iowa,  82 ; 
Swift  V.  Newport,  7  Bush,  37 ;  Hum- 
bolt  County  V.  County  Com'rs,  6 
Nev.  30. 

3Seeposf,  §  483. 

4  Williamson  v.  Keokuk,  44  Iowa, 
88 ;  In  re  Kiernan,  6  T.  &  C.  320 ; 
State  V,  Newark,  34  N.  J.  L.  236, 
and  Humbolt  Co.  v.  County  Com'rs, 
6  Nev.  30,  are  hable  to  criticism  for 
embracing  provisions  which  are  not 
strictly  cognate  with  the  pm-pose  of 
the  act  as  stated  in  the  title.  See 
Dolese  v.  Pierce,  124  lU.  140. 

5  State  V.  Silver,  9  Nev.  227 ;  People 
v.  Common  CouncH,  13  Abb.  Pr.  (N.  S.) 
121 ;  Lowndes  Comity  v.  Hmiter,  49 
AJa.  507 ;  State  v.  Wardens,  23  La.  Ann. 
720 ;  Brieswick  v.  Mayor,  etc.  51  Ga 
639 ;  Davis  v.  State,  7  Md.  115 ;  In  re 
Tappen,  36  How.  Pr.  390 ;  Ex  parte 
Thomason,  16  Neb.  238;  Mewherter 
V.  Price,  11  Ind.  199;  People  v.  Gad- 


CONSTITUTIONAL    REQUIREMENT,  ETC.  119 

not  cover  a  retrospective  provision.'  An  act  to  prescribe  the 
manner  of  creating  corporations  cannot  constitutionally  em- 
brace provisions  amending  existing  charters.^  A  title  import- 
ing exclusively  a  public  statute  Avill  not  cover  provisions  of  a 
private  nature  not  mentioned  in  the  title.^  An  act  purport- 
ing by  its  title  to  legalize  and  make  valid  certain  county  bonds 
may  not  authorize  the  issue  of  new  bonds  for  like  reasons  to 
other  persons.*  Provisions  directing  the  manner  of  executing 
a  judgment  may  not  be  embraced  in  an  act  professing  by  its 
title  to  regulate  fees  on  judicial  sales.^  Under  a  title  provid- 
ing for  work  in  the  improvement  of  certain  named  streets  in 
a  city,  no  provisions  can  be  enacted  for  Avork  on  others  not 
named.^  A  title  confined  to  leasehold  estates  will  not  cover 
provisions  relating  to  freeholds,'  So  an  act  whose  title  refers 
only  to  revenue  for  state  and  county  purposes  cannot  provide 
for  municipal  revenues.^  It  has  been  made  a  question  whether 
an  act  entitled  to  regulate  the  jurisdiction  of  a  class  of  inferior 
courts  and  providing  for  an  appeal  could  properly  regulate  the 
jurisdiction  and  practice  of  the  appellate  court  in  the  cases  so 
appealed.  It  appears  to  the  writer  to  be  an  extraneous  sub- 
ject.^ 

way,  61   Mich.   285 ;  Church  v.   De-  5  Gaskin  v.  Anderson,  55  Barb.  259. 

troit,  64  id.  571 ;  Nester  v.  Busch,  id.  <>  In  re    Sackett,    etc.    Stieets,    74 

657 ;  Losch  v.  St  Charles,  65  id.  555 ;  N.  Y.  95. 

Supervisoi-s  v.  Auditor-Gen'l,   68  id.  ^  Doi-sey's  Appeal,  72  Pa.  St.  192. 

659 ;  Ellis  v.  Hutchinson,  70  id.  154 ;  «  Ross  v.  Davis,  97  Ind.  79 ;  Bugher 

Eaton  V.  Walker,  76  id.  579 ;  FideUty  v.  Prescott,  23  Fed.  Eep.  20 ;  Knox- 

lus.  Co.  V.  Shenandoah  V.  R.  R.  Co.  9  ville  v.  Le^vis,  12  Lea,  180. 

S.   E.   R.   759 ;   Thomas  v.   Wabash,  » Jones  v.  Tiompson,  12  Bush,  394 ; 

etc.  R   R.   Co.    40    Fed.    Rep.    126;  Faqua  v.  Mullen,  13  Bush,  467 ;  Kulms 

Touzalin  v.   Omalia,    25    Neb.   817 ;  v.  Kraminis,   20  Ind.   490,  overruled 

McCabe  v.  Kenny,  52  Hun,  514 ;  Lane  in  Robinson  v.  Skipworth,   23  Ind. 

V.  State,  49  N.  J.  L.  673 ;  Hatfield  v.  311.    The  title  of  the  act  m  question 

Commonwealth,    120    Pa.    St.   395 ;  in  this  case  was :  "  The  election  and 

Wulftange  v.  McCollom,  83  Ky.  361.  qualification  of  justices  of  the  peace 

1  Tlionias  v.  Colhns,  58  Mich.  64.  and  defining  their  jm-ischction,  pow- 

*  Ayeridge  v.  Town  Com'rs,  60  Ga.  ers  and  duties  in  civil  cases."  The 
405 ;  Citj'  Council  v.  Port  Royal,  etc.  act  contained  a  provision  in  re- 
74  Ga.  658.  gard  to  cases  apj)ealed  from  justices' 

3  People  V.  Supervisoi-s,  43  N.   Y.  courts  to  the  circuit  and  common 

10.    But  see  Neuendorff  v.  Duryea,  pleas  couits,  that  "such  cases  shall 

69  N.  Y.  557.  stand  for  trial  in  the  comt  of  com- 

*  Board  of  Commissioners  v.  Baker,  mou  pleas  or  cii-cuit  courts  whenever 
80  Ind.  374.  such  ti'anscript  has   been  filed  ten 


120 


CONSTITUTIONAL    EEQUIKEMENT,  ETC. 


An  act  which  by  its  title  is  directed  against  the  adulteration 
of  milk,  and  professing  to  regulate  the  sale  of  milk,  does  not 
extend  to  the  provision  against  producing  unwholesome  milk 
hy  any  other  process  than  adulteration.^  So,  where  the  title 
of  an  act  referred  only  to  bills  and  promissory  notes,  no  other 
contracts  could  be  affected  or  made  the  subject  of  legislation 
in  the  body  of  the  act.-     A  title  of  legislation  relating  to  the 


days  before  the  first  day  of  the  term 
thereof,  and  be  there  ti-ied  under  the 
same  rules  and  regtdatious  prescribed 
for  ti'ials  before  justices ;  and  amend- 
ments of  the  pleadings  may  be  made 
on  such  terms  as  to  costs  and  contin- 
uances as  the  court  may  order."  In 
Kahns  v.  Krammis  the  court  said : 
"  Appeals  from  justices  of  the  peace 
enthely  remove  the  causes  appealed 
from  the  jvxstices.  They  are  not 
tried  upon  error  but  de  novo,  and  are 
never  retiu-ned  to  the  justices.  The 
final  judgment  regulating  the  rights 
of  the  parties  is  rendered  in  tlie  ap- 
pellate coui't.  Such  being  the  case, 
all  legislation  toucliing  the  manner 
of  rendering  judgment  in  such  cases 
should  be  in  acts  regulating  proceed- 
ings in  the  appellate  com'ts ;  and  pro- 
visions in  the  justice's  act  assuming 
to  prescribe  the  practice  in  the  trial 
and  judgment  of  such  causes  in  the 
appellate  com-ts  is  in  no  manner  con- 
nected witli  the  act  regulating  the 
practice  in  justice's  court."  "  But," 
the  court  inquires  in  the  overruling 
opinion  in  Robinson  v.  Skipworth, 
"  is  there  not  a  natural  and  proper 
connection  between  this  matter  and 
the  subject  of  the  act?  It  is  plain 
that  to  constitute  tliis  connection  the 
matter  need  not  form  any  part  of  tlie 
subject  For  it  is  well  said  by  Mr. 
Justice  Perkins  in  delivering  the 
opinion  of  this  coui't  in  the  case  of 
The  Bank  of  the  State  of  Indiana  v. 
The  City  of  New  Albany,  11  Ind.  139, 
that  as  to  sec.  19,  art  4  (of  tlie  con- 
stitution), referred  to,  that  "  every  act 


shall  embrace  but  one  subjectand  mat- 
ters properly  connected  therewith, 
which  subject  shaU  be  expressed  in 
the  title."  The  title  incoi-porating 
the  bank  is  "  An  act  incorporating 
the  bank  without  branches."  We 
have  akeady  seen  that  the  extent 
and  manner  of  taxing  the  capital 
stock  of  the  bank,  when  created,  is  a 
matter  properly  connected  with  the 
subject  of  chartering  the  institution, 
and  it  is  only  the  subject,  and  not  the 
matter  properly  connected  thereunth, 
that  must  be  expressed  in  the  title. 
The  chain  connecting  the  matter  of 
section  70  (supra)  with  the  subject  of 
the  act  is  unbroken.  We  follow  the 
case  in  all  its  stages,  from  the  com- 
mencement of  the  action  to  the  final 
judgment  of  tlie  justice;  then  fol- 
lows the  appeal;  then  the  proceed- 
ings in  tlie  appellate  coml,  step  by 
step,  to  final  judgment,  including 
costs  in  the  action."  Here  the  cases 
on  which  the  jurisdiction  is  exex'cised 
are  treated  as  "  matter  properly  con- 
nected therewith,"  even  after  they 
have  passed  beyond  that  jurisdiction. 
It  is  not  tlie  purpose  of  the  act  to  pro- 
vide for  cases  —  they  are  connected 
with  the  subject  of  the  act  —  the  jus- 
tice's jm'isdiction — while  they  are  sub- 
jects of  that  jm'isdiction  —  no  longer. 
They  ai'e  incidents ;  and  when  they 
have  passed  out  of  the  sphere  of  the 
principal,  they  are  no  longer  con- 
nected with  it  in  theory  or  jiractica 

'  Shivers  v.  Newton,  45  N.  J.  L. 
469. 

2  I\Iewherter  v.  Price,  11  Ind,  199. 


CONSTITUTIONAL   EEQUIKEMENT,  ETC.  121 

transportation  of  freight  will  not  permit  any  provision  rela- 
tive to  passenger  transportation.'  Nor  is  a  title  providing  for 
the  acknowledgment  of  deeds  and  other  conveyances  of  land 
broad  enough  to  include  provisions  defining  the  consequences 
of  a  failure  to  record  such  instruments.-  Under  the  phrase 
"  to  lay  additional  tracks,"  in  the  title  of  an  act  supplementary 
to  the  charter  of  a  railway  company,  a  new  route  cannot  be 
substituted  for  that  established  under  the  original  charter.' 
An  act  confined  by  the  title  to  "  the  preservation  of  the  Mus- 
kegon river  improvement "  may  include  authority  to  collect 
tolls  and  expend  the  money  for  that  object,  but  a  provision  for 
raising  means  to  pay  and  authorizing  payment  for  the  original 
construction  of  the  work  is  beyond  the  object  expressed  in  the 
title.*  An  act  "  to  secure  complete  records  in  the  courts  "  does 
not  warrant  a  provision  for  obtaining  recovery  from  a  delin- 
quent officer  who  had  been  already  paid  for  completing  the 
record.'  An  act  "  to  provide  revenue  by  taxation  of  corpo- 
rations, associations  and  Ihnited  partnerships  "  is  too  restricted 
to  embrace  individual  taxation."^  Provisions  for  attaching  un- 
organized  territory  to  a  judicial  district  cannot  be  enacted 
under  a  title  to  regulate  the  terms  of  court  in  it.^ 

§  103.  Effect  of  acts  coutaiiiiiig  more  thau  oue  subject. — 
If  an  act  contain  more  than  one  subject,  and  more  than  one 
subject  is  expressed  in  the  title,  the  whole  act  is  void.^ 

In  State  v.  Lancaster  Co.,**  Maxwell,  J.,  said:  "The  rule  is 
well  settled  that  where  the  title  to  an  act  actually  indicates, 
and  the  act  itself  actually  includes,  tAvo  distinct  objects,  where 
the  constitution  declares  it  shall  embrace  but  one,  the  whole 
act  must  be  treated  as  void,  from  the  manifest  impossibility  of 
choosing  between  the  two  and  holding  the  act  valid  as  to  one 

1  Evans  v.  Memphis,  etc.  R.  R.  Co.  ^  state  v.  McCann,  4  Lea,  1 ;  Skinner 
56  Ala,  246.  v.  WiUielm,  63  IMich.  568 ;  Johustou 

2  Carr  v.  Thomas,  18  Fla  736.  v.  Spicer,  107  N.  Y.  185 ;  Re  Commis- 

3  West  Phila  R.  R.  Co.  v.  Union  sioners,  49  N.  J.  L.  488;  Ragio  v. 
R  R.  Co.  9  Pliila,  495.  State,  86  Tenn.  273 ;  State  v.   Lan- 

*  Ryerson  v.  Utley,  16  Mich.  269.  caster  Co.  17  Neb.  87 ;  Moore  v.  Po- 

5  Lowndes  County  v.  Hunter,  49  lice  Jmy,  32  La.  .Ann.  1013 ;  Davis  v. 
Ala  507.  State,  7  Md.  151 ;  Pennington  v.  Wool- 

6  Commonwealth  v.  Martin,  107  Pa  folk,  79  Ky.  13. 
St  185.  a  17  Neb.  87. 

J  Ex  parte  Wood,  34  Kan.  645. 


122  CONSTITUTIONAL    KEQUIEEMENT,  ETC. 

and  void  as  to  the  other.'  But  this  rule  will  apply 'only  in 
those  cases  where  it  is  impossible  from  an  inspection  of  the 
act  itself  to  determine  which  act,  or  rather  which  part  of  the 
act,  is  void  and  which  is  valid.  Where  this  can  be  done  the  rule 
does  not  apply,  unless  it  shall  appear  that  the  invalid  portion 
was  designed  as  inducement  to  pass  the  vahd,  so  that  the 
whole  taken  together  will  warrant  the  belief  that  the  legis- 
lature would  have  passed  the  valid  part  alone."  So  if  the 
body  of  an  act  embrace  more  than  one  subject,  and  only  one 
be  mentioned  in  the  title,  the  whole  act  will  be  void,  unless 
the  subject  mentioned  in  the  title  is  so  independently  treated 
in  the  act  as  to  be  capable  of  separation  from  the  other  sub- 
ject. This  result  must  be  the  conclusion  though  the  act  be 
passed  under  a  constitution  like  that  of  California,  containing 
the  condition  added  to  the  inhibitory  clause  in  question. 

In  People  v.  Parks,^  McKee,  J.,  thus  characterizes  the  act  in 
question,  entitled  an  act  "  to  promote  drainage : "  "  It  will 
thus  be  seen  that  the  body  and  scope  of  the  act  included  a 
combination  of  subjects ;  the  construction  of  reservoirs  for  the 
storage  of  debris  from  mines ;  the  protection  of  mines,  towns 
or  cities  from  inundation,  by  the  erection  of  embankments 
or  dykes ;  the  drainage  of  certain  districts  of  the  state  by  the 
rectification  of  river  channels,  and  the  levy  of  special  taxes  to 
carry  on  a  system  of  public  works,  are  all  inseparably  con- 
joined in  the  body  of  the  act.  The  extraordinary  powers  con- 
ferred upon  the  district  board  of  directors  are  to  be  exercised 
for  the  benefit  of  all  the  subjects  conjointly;  and  the  money 
to  be  raised  by  the  exercise  of  these  powers  is  to  be  expended 
for  all  without  distinction  as  to  any  particular  ones,  thus  ren- 
dering it  impossible  to  disjoin  the  subjects  embraced  in  the  act 
which  are  not  expressed  in  its  title  so  as  to  adjudge  the  one 
void  and  the  other  vahd  as  might  be  done  under  section  24  of 
article  4  of  the  constitution."  * 

Where  the  provisions  of  a  statute  which  are  not  connected 
with  its  subject  are  separable,  they  will  be  declared  void  and 
the  residue  sustained.*  In  states  where  this  constitutional  re- 
striction applies  only  to  local  and  private  acts,  the  joinder  of 

1  Cooley's  Const  Liin.  147.  253 ;  State  v.  Crowley,  33  La.  Ann. 

2  58  CaL  624,  638.  782. 

3 See  State  v.  Exnicios,  33  La,  Ann.        *  state  v.  Dalon,  35  La,  Ann.  1141 ; 


CONSTITUTIONAL   REQUIREMENT,  ETC. 


123 


provisions  of  a  public  or  general  nature  with  those  of  a  local 
or  private  nature  will  not  invalidate  the  former  though  the 
latter  may  be  void  for  duplicity  of  subjects  in  the  act  or  for 
not  being  germane  to  the  title.' 

Cooley's  C.  L.  181 ;  People  v.  Briggs,  No.  3  v.  Michoud,  6  La.  Ann.  GOo ;  Ex 
50  N.  Y.  566,  568 ;  Succession  of  parte  IMoore,  62  Ala.  471 ;  MLssissippi 
Irwin,  33  La.  Ann.  63 ;  State  v.  Ex- 
nicios,  33  La,  Ann.  253;  Unity  v. 
Burrage,  103  U.  S.  447;  State  v. 
Yoimg,  47  Ind.  150;  Shoemaker  v. 
Smith,  37  Ind.  122 ;  Eichards  v,  Rich- 
ards, 76  N.  Y.  188 ;  Ex  parte  Wood, 
34  Kan.  645 ;  Dorsey's  Appeal,  72  Pa. 
St  192;  Commonwealth  v.  Martin, 
107  Pa.  St.  185 ;  Stuart  v,  KinseUa,  14 
5linn.  524 ;  State  v.  Lancaster  Co.  17 
Neb.  87;  Smith  v.  Mayor,  34  How. 
Pr.  508 ;  Allegheny  Co.  Home's  Case, 
77  Pa.  St  77 ;  Adams  v.  Webster,  26 
La.  Ann.  142 ;  State  v.  Baum,  33  La, 
Ann.  981 ;  Wilhanison  v.  Keokuk,  44 
Iowa,  88 ;  State  v.  Hurds,  19  Neb.  316 ; 
Wliited  V.  Lewis,  25  La.  Ann.  568; 
People  V.  Hall,  8  Colo.  485  ;  Fuqua  v. 


&  R  River  B.  Co.  v.  Prince,  10  Am. 
&  Eng.  Corp.  Cas.  391;  Ex  paite 
Thomason,  16  Neb.  238;  Davis  v. 
State,  7  Md.  151 ;  State  v.  Wardens,  23 
La.  Ann.  720 ;  State  v.  SUver,  9  Nev. 
227 ;  Gibson  v.  Belcher,  1  Bush,  145 ; 
Stockle  V.  Silsbee,  41  Mich.  616 ;  Peo- 
ple v.  Fleming,  7  Colo.  230 ;  Bugher 
V.  Prescott,  23  Fed.  Rep.  20;  Rader 
V.  Townsliip  of  Union,  39  N.  J.  L. 
509 ;  Daubman  v.  Smith,  47  N.  J.  L. 
200;  Grubbs  v.  State,  24  Ind.  295; 
Rusliing  V.  Sebree,  12  Bush,  198; 
Central  &  G.  R.  R.  Co.  v.  People,  5 
Colo.  39. 

1  People  V.  Supervisors,  43  N.  Y.  10 ; 
Richards  v.  Richards,  76  N.  Y.  186, 
189 ;  People  v.  McCann,  16  N.  Y.  58 ; 


Mullen,  13  Bush,  467 ;   Municipality    Wilhams  v.  People,  24  N.  Y.  405. 


CHAPTER  V. 


TIME  OF  TAKING  EFFECT. 


§  104  When  silent  as  to  commence- 
ment 

105.  Acts  of  parliament  formerly 

took  effect  from  fii-st  day  of 
session. 

106.  Actual  date  of  passage  adopted 

in  this  coim.tiy. 

107.  Legislatm-e  may  fix  the  time 

for  act  to  take  effect 


108,  109.  Constitutional  r  e  g  u  1  a- 
tions. 

110.  Precise  time  of  taking  imme- 
diate effect 

111-115.  Computation  of  time  when 
to  take  effect  in  specific 
number  of  days. 


§  104.  When  silent  as  to  commencement. —  When  no  other 
time  is  fixed  a  statute  takes  effect  from  the  date  of  its  pas- 
sage —  fi'om  the  date  of  the  last  act  necessary  to  complete  the 
process  of  legislation  and  to  give  a  bill  the  force  of  law.* 
When  approved  by  the  executive  the  act  of  approval  is  the 
last  act,  and  the  date  of  it  is  the  date  of  passage  of  the  act.^ 
If  passed  after  a  veto,  the  date  of  the  final  vote  is  the  date  of 
passage.  When  a  bill  becomes  a  law  by  the  non-action  of  the 
executive,  under  constitutional  regulations,  the  non-action  of 
the  executive  is  a  quasi  approval,  not  complete  until  the  lapse 


1  Matthews  v.  Zane,  7  Wlieat  164, 
211 ;  Louisville  v.  Savings  Bank,  104 
U.  S.  469 ;  Johnson  v.  Merchandise, 
2  Paine,  601 ;  The  Brig  Ann,  1  GaU. 
61 ;  Heard  v.  Heard,  8  Ga.  380 ;  Fau-- 
clnld  V.  Gwymie,  14  Abb.  Pr.  121 ; 
Baker  v.  Compton,  52  Tex.  252 ;  Tem- 
ple V.  Hays,  MoitIs  (la,),  12;  In  re 
Richardson,  2  Story,  571 ;  Roe  v. 
Hersey,  3  Wils.  275 ;  LescM  v.  Wash- 
ington T'y,  1  Wash.  T.  13 ;  Rathbone 
V.  Bradford,  1  Ala  (N.  S.)  312 ;  Adm'r 
of  Weatlierford  v.  Weatherford,  8 
Port  171 ;  People  v.  Clark,  1  Cal.  406 ; 
State  V.  Chck,  2  Ala.  26 ;  Taylor  v. 
State,  26  Ala.  283 ;  Mobile  R.  R.  Co.  v. 
State,  29  id.  573 ;  Branch  Bank  v.  Mur- 


phy, 8  id.  119 ;  Dyer  v.  State,  Meigs, 
237 ;  Logan  v.  State,  3  Heisk.  442 ; 
Day  V.  McGinnis,  1  id.  310 ;  DowUng 
V.  Smith,  9  Md.  242 ;  Smets  v.  Weath- 
ersbee,  R.  M.  Charlt  537 ;  GoodseU  v. 
Boynton,  2  ILL  555 ;  Tarlton  v.  Peggs, 
18  Ind.  24 ;  West  v.  Creditors,  1  La. 
Ann.  365 ;  Parkinson  v.  State,  14  Md. 
184 ;  State  v.  Bank,  12  Rich.  L.  609 ; 
Bassett  v.  United  States,  2  Ct  of  CI. 
448. 

2  Gardner  v.  The  Collector,  6  Wall. 
499 ;  LouisvUle  v.  Savings  Bank,  104 
U.  S.  469 ;  Mead  v.  Bagnall,  15  Wis. 
150;  Smets  v.  Weathersbee,  R.  M. 
Charlt  537;  Risewick  v.  Davis,  19 
Md.82. 


TTlVrE    OF   TAKING    EFFECT.  125 

of  the  time  prescribed  for  bis  affirmative  action  under  tbo 
given  conditions: 

In  tbe  absence  of  evidence  of  the  precise  time  when  ap- 
proved, an  act  operates  during  the  whole  of  the  day  of  ap- 
proval.^ The  constitution  of  Tennessee  provides  that  no  act 
shall  become  a  law  until,  among  other  things  which  are  legis- 
lative, it  "  be  signed  by  the  respective  speakers."  "^  This  sign- 
ing, though  thus  made  essential,  is  held  not  to  fix  the  date  of 
passage ;  not  being  legislative  but  ministerial  in  its  nature, 
when  it  has  been  performed,  the  act  by  relation  takes  effect 
from  the  conclusion  of  the  proceeding  which  is  legislative.' 

When  no  future  date  is  fixed,  the  act  takes  effect  imme- 
diately ;  no  time  is  allowed  for  publication.  There  would  be 
hardship  if  all  acts  were  left  so  to  take  effect.  The  reason  of 
the  rule  was  well  stated  by  Mr.  Doddridge,  of  counsel,  in 
Matthews  v.  Zane : *  "It  being  practically  impossible  actually 
to  notify  every  person  in  the  community  of  the  passage  of  a 
law,  whatever  day  might  be  appointed  for  its  taking  effect,  no 
general  rule  could  be  adopted  less  exceptionable.  The  general 
rule  may,  in  some  instances,  produce  hardship ;  but  if  ignorance 
of  the  law  was  admitted  as  an  excuse,  too  wide  a  door  would 
be  left  open  for  the  breach  of  it."  Where  statutes  are  liable  to 
produce  injustice  by  taking  immediate  effect,  the  legislature 
will,  except  through  inadvertence,  appoint  a  future  day  from 
whence  they  are  to  be  in  force.  Blackstone,  after  treating 
of  the  promulgation  of  laws,  and  the  duty  of  legislatures  to 
make  them  public,  says,  "  all  laws  should  therefore  be  made 
to  commence  in  futuro^  and  be  notified  before  their  com- 
mencement, which  is  implied  in  the  term  prescribed."  * 

1  Mallory  v.  Hiles,  4  Met,  (Ky.)  53 ;  lands  by  descent  in  Bucks  coiinty, 
!^^atter  of  Carrier,  13  Bankr.  Reg.  208 ;  brought  an  ejectment  against  Robe- 
Wliitehead  v.  Wells,  29  Ark,  1)9.  son  for  their  recovery.     The  title  of 

2  Art.  II,  sec.  18.  the  land  was  clearly  shown  to  have 
'  Lewis  V.  Woodfolk,  58  Term.  25.  been  at  one  time  in  the  ancestor  of 
*  7  Wheat.  179,  the  lessee  of  the  plaintiff ;  but  at  a 
6 1  Black.  Com.  45 ;  1  Kent's  Com.  subsequent  period  the  lands  were  de- 

458 ;  Ship  Cotton  Planter,  1  Paine,  23 ;  creed  to  the  defendant  by  this  court, 

Cross  V.  Harrison,  16  How.  19G.    See  in  pursuance  of  certain  chancery  pow- 

Lessee  of  Albertson   v.   Robeson,   1  ere  delegated  to  them  by  an  old  act 

Dall.  9.   Yeates,  J.,  in  Morgan  v.  Stell,  of  assembly.    The  royal  assent  was 

5  Bin.  318,  gave  this  statement  of  the  refused  to  tliis  law  in  England,  and  it 

case :    Albertson,    claiming    certain  so  happened  that  the  repeal  precedes 


126  TIME    OF    TAKING    EFFECT. 

§  105.  Acts  of  parliament  formerly  took  effect  from  tlie 
first  day  of  the  session. —  By  the  common  law  the  parliament 
roll  being  the  exclusive  record  of  statutes,  and  no  other  date 
appearing  than  that  of  the  beginning  of  the  session,  laws  took 
effect  from  that  date,  when  no  other  was  provided  by  the  act. 
Until  the  statute  of  33  Geo.  III.,  ch.  13,  there  was  no  indorse- 
ment on  the  roll  of  the  day  on  which  the  bills  received  the 
rojiil  assent,  and  all  acts  passed  in  the  same  session  were  con- 
sidered as  having  received  the  royal  assent  on  the  same  day, 
and  were  referred  to  the  first  day  of  the  session.^  By  the 
statute  of  33  Geo.  III.  it  was  provided  that  a  certain  parlia- 
mentary officer  should  indorse  on  every  act  of  parhament 
"  the  day,  month  and  year  when  the  same  shall  have  passed 
and  shall  have  received  the  royal  assent ;  and  such  indorse- 
ment shall  be  taken  to  be  a  part  of  such  act,  and  to  be  the  date 
of  its  commencement,  where  no  other  commencement  shaU  be 
therein  provided." 

§  106.  The  actual  date  of  passage  adopted  in  this  country. 
The  injustice  of  permitting  laws  to  have  retroactive  effect  by 
relation  is  so  manifest  that  it  has  not  had  much  countenance 
in  the  United  States.  Without  departing  from  the  rule,  ex- 
cept by  constitutional  direction,  that  the  legislative  record  is 
conclusive,  statutes  have  not  generally  had  effect  from  any 
date  prior  to  their  actual  passage.  The  fiction  that  all  laws 
are  enacted  on  the  first  day  of  the  legislative  session  is  not 
adopted.  The  actual  date  either  appears  in  pursuance  of  leg- 
islative and  executive  practice  u])on  the  statute  itself,  or  it  is 
otherwise  shown  by  official  records;  and  this  date  is  popularly 
known  and  judicially  recognized. 

In  North  Carolina  the  fiction  appears  to  be  recognized  as 
part  of  the  common  law,  and  all  laws  take  effect  by  relation 
from  the  first  day  of  the  session.-     Courts  are  bound  ex  officio 

the  decree  of  the  court  above  two  '  Rex  v.  Justices  of  Middlesex,  2 

months,    but   the    repeal    was    not  Barn.   &  Ad.   818;   Panter  v.  AttV 

knouTi  here  when  the  decree  was  General,  6  Brown,  P.  C.  486 ;  Latless 

made.    Tlie  court  determined,  upon  v.  Holmes,  4  T.  R.  660 ;  Partridge  v. 

full  argument,  that  the  imknown  re-  Strange,  1  Plow,  79 ;  King  v.  Thiu-s- 

peal  could  not  affect  the  right  of  the  ton,  1  Lev.  91 ;  Bac.  Abr.  title  Stat- 

defendant  under  the  decree,  and  the  ute,  C. ;  1  Kent's  Com.  456. 

jury  found  accordingly,  and  the  de-  -'  Hamlet  v.    Taylor,    5  Jones'    L. 

cision    gave  general   satisfaction  to  36;   Weeks  v.    Weeks,   5  Ired.    Eq. 

the  prof ession.  Ill;    S.   C.  47   Am.   Dec.   358.    See 


TIME    or    TAKING    EFFECT.  127 

to  take  notice  as  well  of  the  time  Avhen  public  acts  go  into  op- 
eration as  of  their  provisions.'  Statutes  of  tlie  same  session 
passed  on  different  days  are  not  to  be  regarded  as  Laving  effect 
from  the  same  day  because  they  pertain  to  the  same  subject.^ 
§  107.  The  legislature  may  fix  a  future  day  for  an  act  to 
take  eifect. —  The  power  to  enact  laws  includes  the  power, 
subject  to  constitutional  restrictions,  to  provide  when  in  the 
future,  and  upon  what  conditions  or  event,  tliey  shall  take 
effect.*  "Where  a  particular  time  for  the  commencement  of  a 
statute  is  appointed,  it  only  begins  to  have  eifect  and  to  speak 
from  that  time,  unless  a  different  intention  is  manifest,^  and 
will  speak  and  operate  from  the  beginning  of  that  day.'^  Where 
the  provisions  of  a  revising  statute  are  to  take  effect  at  a  future 
period,  and  the  statute  contains  a  clause  repealing  the  former 
statute  upon  the  same  subject,  the  repealing  clause  will  not 
take  effect  until  the  other  provisions  come  into  operation.''  The 
period  between  the  passage  of  a  law  and  the  time  of  its  going 
into  effect  is  allowed  to  enable  the  public  to  become  acquainted 
with  its  provisions ;  but  until  it  becomes  a  law,  they  are  not 
compelled  to  govern  their  actions  by  it.  Thus,  an  act  which 
was  to  go  into  effect  at  a  future  day,  established  new  periods 
of  time  for  the  limitation  of  actions.  It  was  held  not  applicable 
to  a  case  having  several  years  to  run  where  the  act  would  be 

Boston  V.  Cummins,  60  Am.  Dec.  717,  Gen.  6  Brown,  P.  C.  486 ;  DeanT.  Kmg, 

723 ;  S.  C.  16  Ga.  103.  13  Ired.  L.  30 ;  WHieeler  v.  Chubbuck, 

1  State  V.  Foote,  11  Wis.  14.  16  lU.  361 ;  Boston  v.  Cummins,  16  Ga, 

2  Taylor  v.  State,  31  Ala.  383 ;  Met-  103 ;  S.  C.  60  Am.  Dec.  717 ;  Evans- 
ropolitan  Board  v.  Schmades,  10  Abb.  vUle,  etc.  E.  R.  Co.  v.  Barbee,  74  Ind. 
Pr.  (N.  S.)  30o.  169 ;  Larrabee  v.  Talbott,  5  GUI,  426 ; 

3  People  V.  Salomon,  51  IlL  37 ;  New  Charless  v.  Lamberson,  1  Iowa,  435 ; 
Orleans  v.  Holmes,  13  La,  Ann.  503 ;  Davenport  v.  Railroad  Co.  37  id.  624 ; 
Carpenter  v.  Montgomery,  7  Blackf.  Wolilscheid  v.  Bergrath,  46  Mich.  46. 
415 ;  Gorham  v.  Springfield,  81  Me.  See  Fosdick  v.  Perrysburg,  14  Ohid 
58 ;  Cooper  v.  Curtis,  30  id.  488 ;  Par-  St.  473 ;  To^^^l  of  Fox  v.  Town  of  Ken- 
kinson  v.  State,  14  Md.  184.  dall,  97  IlL  73,  75.    Upon  the  enact- 

*  Bac.  Abr.  tit.  Statutes,  C. ;  Rice  v.  ment  of  a  new  penalty  for  an  offense, 

Ruddiman,   10  Mich.    125  ;    Price  v.  the  former  penalty  is  not  supei-seded 

Hopkin,  13  Mich.  318 ;  Gilkey  v.  Cook,  until  the  statute  prescribing  the  new 

60  Wis.  133 ;  Jackman  v.  Garland,  64  penalty  takes  effect    Grinad  v.  State, 

Ma  133 ;  Swann  v.  Buck,  40  IMiss.  305 ;  supra. 

Grinad  V.  State,  84  Ga,  270 ;  FaircMld  SRice  v.  Ruddiman,  10  Mich.  125 

V.  Gwynne,  14  Abb.  Pr.  121 ;  Latless  «Spaulding  v.  Alford,  1  Pick.  33. 
V.  Holmes,  4  T.  R.  660 ;  Ranter  v.  Att'y 


128  TIME    OF   TAKING    EFFECT. 

a  bar  the  moment  it  took  effect.  It  could  not  operate  to  put 
the  party  on  dihgence  before  it  went  into  operation.  As  it 
gave  him  no  future  time  after  it  became  a  law,  it  was  inoper- 
ative as  to  that  case.^  The  exception  of  injuries  "  already  sus- 
tained "  in  a  statute  is  to  be  construed  as  spoken  when  it  took 
effect.2 

The  terms  "  heretofore  "  and  "  hereafter  "  will  be  construed 
as  spoken  at  the  time  the  act  takes  effect.'  The  bankrupt  .aw 
enacted  on  the  19th  day  of  August,  1841,  was  provided  to  take 
effect  only  from  and  after  February  1,  1842.  This  was  equiv- 
alent to  declaring  that  it  should  have  no  effect  until  that  day, 
and  hence  it  did  not  suspend  the  operation  of  the  state  insolv- 
ent laws  until  that  day.* 

If  a  particu]>  r  day  is  named  for  an  act  to  take  effect,  but  it 
is  not  approved  until  after  that  day,  its  provisions,  in  terms 
prospective,  will  not  have  effect  until  after  the  date  of  ap- 
proval.^ And  if  the  main  and  principal  clause  of  an  act  is  to 
come  into  operation  from  a  day  named,  the  other  subsidiary 
clauses  may  also  be  held  to  commence  from  that  day,  though 
it  be  not  so  expressed,  if  it  would  be  inconvenient  that  they 
should  commence  from  the  passing  of  the  act." 

Where  a  general  statute  provides  that  acts  shaU  take  effect 
at  a  specified  day  after  the  adjournment  of  the  session,  it  wiU 
govern  all  future  legislation  unless  there  is  some  indication  of 
a  contrary  purpose.  Acquiescence  in  such  a  statute  is  pre- 
sumed unless  dissent  is  shown.^  It  will  govern  private  as  well 
as  public  acts.*  An  act  may  be  brought  into  effect  at  an  earlier 
day  than  that  appointed  in  its  provisions  by  an  amendatory  or 
supplemental  act.  Thus  the  Mississippi  constitution  provides 
that,  if  acts  are  silent  on  the  time  when  they  shall  take  effect, 
they  shall  go  into  effect  sixty  days  after  their  passage.  After 
an  original  act  a  supplemental  act  was  passed  which  provided 
that  it  go  into  effect  immediately.  This  provision  was  held  to 
embrace  and  give  immediate  effect  to  the  original  act.'    A 

1  Price  V.  Hopkins,  suprcu    But  see        *  Larrabee  v.  Talbott,  5  Gill,  426. 
Hedger  v.  Rennaker,  3  Met.  (Ky.)  255 ;        *  Bum  v.  Carvaliio,  4  Nev.  &  M. 
Stine  V.  Bennett,  13  Minn.  153 ;  Smith    893. 

V.  Morrison,  22  Pick.  430.  6  Whitborn  v.  Evans,  2  East,  185. 

2  Jackman  v.  Garland,  64  Me.  133.  "^  Jackman  v.  Garland,  64  Me.  133. 

3  EvansvUle,  etc.  R.  R.  Co.  v.  Bar-        6  Cooper  v.  Cui-tis,  30  Me.  488. 

bee,  59  Ind.  592 ;  S.  a  74  id.  171,  8  West  F.  R.  R.  Ca  v.  Johnson,  5 


TIME    OF    TAKING    EFFECT.  129 

statute  may  be  framed  to  take  effect  on  the  happening  of  a 
future  event,'  and  this  event  may  be  the  passage  of  a  law  in 
another  state.^ 

§  108.  Constitutional  provisions  regulating  the  time  of 
acts  taking  effect. —  In  many  state  constitutions  are  regular 
tions  of  this  sort ;  that  acts  shall  take  effect  a  certain  nmnber 
of  days  after  their  passage,  or  after  the  end  of  the  session,  un- 
less the  acts  themselves  otherwise  provide.*  In  several  a  larger 
majority  is  required  to  give  immediate  effect  to  an  act  than  to 
pass  it ;  in  others  there  must  be  some  emergency  to  warrant 
it.  These  provisions  are  mandatory.*  "Where  it  is  requu^ed 
by  the  constitution  that  an  act  shall  declare  that  an  emergency 
exists  for  making  it  take  immediate  effect,  such  declaration 
cannot  be  omitted.  If  the  emergency  clause  be  absent,  the 
provision  that  the  act  take  immediate  effect  will,  under  such 
constitutional  requirement,  be  held  void,  and  the  act  will  take 
effect  as  though  silent  on  that  subject.*  The  emergency  clause 
in  an  act  passed  June  14,  1852,  regulating  the  remission  of 
fines  and  forfeitures,  declared  the  act  to  be  in  force  from  and 
after  its  being  filed  with  the  clerks  of  the  circuit  courts  in  their 
respective  counties.  It  was  held  that  the  legislature  intended 
the  act  to  be  brought  into  force  as  soon  as  it  coidd  be  distrib- 
uted in  the  several  counties,  and  though  there  is  no  express 
direction  to  the  secretary  of  state  to  distribute  it,  the  emer- 
gency clause  imphes  such  a  direction ;  it  was  held  also  that  the 
secretary  of  state  is  to  be  presumed  to  have  done  his  duty,  and 
hence  that  the  act  was  in  force  on  the  20th  day  of  December, 
1852.^  What  may  be  deemed  an  emergency  for  this  purpose 
is  purely  a  legislative  question.  The  courts  will  not  inqiiire 
into  it,  nor  entertain  any  question  of  its  sufficiency.'^  An  act 
which  contains  an  emergency  clause  and  provides  that  it  "  shall 
take  effect  and  be  in  force  from  and  after  its  approval  by  the 

How.  (IVIiss.)  273 ;  Swann  v.  Buck,  40  *Ante,  §§  29,  41. 

Miss.  268.  »  Cain  v.  Goda,  84  Ind.  209. 

1  Ante,  §  71.  6  state  v.  Dumiing,  9  Ind.  20 ;  Stine 

2 1  Am.  &  Eng.  Coi-p.  Cas.  1.  v.  Bennett,  13  Minn.  153. 

SDay  V.   McGinnis,  1  Heisk.  310;  '  GentUe  v.State,29  Ind.  409;  11  id. 

Gorham  v.   Springfield,  21  Me.  58;  224;    Carpenter    v.   Montgomery,    7 

New  Portland  v.  New  Vineyard,  16  Blackf.  415. 

Me.  69. 

9 


130  TIME    OF    TAKING    EFFECT. 

governor,"  and  on  his  vetoing  it  is  passed  by  both  houses  over 
the  veto,  takes  effect  immediately  after  its  passage.' 

§  109.  Taking  effect  on  pnblication. —  Where  the  taking 
effect  of  an  act  depends  on  publication,  required  by  its  own 
terms  or  by  the  constitution,  it  is  a  condition,  and  the  time 
can  be  fixed  only  by  the  date  of  compliance.^  The  provisions 
of  the  Louisiana  constitution  requiring  the  laws  to  be  promul- 
gated in  the  English  language,  and  in  the  English  and  French 
languages,  does  not  prevent  the  legislature  from  passing  acts 
to  take  immediate  effect.^  A  joint  resolution  of  a  general 
nature  requires  the  same  publication  as  any  other  law.*  When 
it  is  provided  that  an  act  shall  go  into  effect  on  pubhcation  in 
two  newspapers,  publication  in  one  will  not  suffice,  though 
officially  certified  to  be  so  published.^  When  properly  pub- 
lished it  will  take  effect  according  to  its  own  terms,  although 
subsequently  published  officially  in  different  terms.  In  one 
instance,  by  the  later  publication,  the  law  erroneously  appeared 
to  repeal  a  prohibitory  section  of  a  previous  law.  The  erro- 
neous publication  was  not  allowed  to  avail  a  person  who  had 
committed  the  act  prohibited  by  such  prior  law,  which  was 
still  in  force.  The  statute,  having  gone  into  effect  on  its  cor- 
rect publication  in  two  newspapers,  was  not  affected  by  the 
subsequent  erroneous  publication." 

Under  a  constitutional  provision  that  "no  act  shall  take 
effect  until  the  same  has  been  published  and  circulated  in  the 
several  counties  of  this  state  by  authority,"  it  was  held  that 
the  words  "  published  "  and  "  circulated  "  were  used  synony- 
mously.^ And  no  publication  or  circulation  is  good  unless 
done  by  authority.^  Under  a  general  constitutional  provision 
that  "no  general  law  shall  be  in  force  until  published,"  publi- 
cation of  a  general  law  by  mistake  only,  in  the  volume  of  pri- 
vate laws,  is  a  sufiicient  publication.^ 

Though  going  into  effect  only  on  publication,  the  act  of 

1  Biggs  V.  McBride,  17  Oregon,  640.        5  Welch  v.  Battern,  47  Iowa,  147. 

2  Cain  V.  Goda,  84  IncL  209 ;  Welch  6  Hunt  v.  Mui-ray,  17  Iowa,  313; 
V.  Battern,  47  Iowa,  147.  State  v.  Donehey,  8  Iowa,  396. 

3  Tliomas  v.  Scott,  23  La.  Ann.  689 ;        "  Jones  v.  Gavins,  4  Ind.  305. 

Re  Merchants'  Bank,  2  La.  Ann.  68 ;  8  Hendrickson   v.    Hendrickson,   7 

State  V.  Judge,  14  La.  Ann.  486.  Ind.    13 ;    McCool  v.   State,  id.   379 ; 

*  State  V.   School    Board  Fund,  4  State  v.  Dunning,  9  id.  20. 

Kan.  261.  9  Re  Boyle,  9  Wis.  264. 


TIME    OF    TAKING    EFFECT.  liJl 

record  in  the  ofTico  of  the  secretary  of  state  is  tlic  law,  Avlien 
different  from  the  published  copy.^  A  law  would  probably 
not  be  deemed  to  be  published,  so  as  to  give  it  effect,  if  the 
publication  materially  differed  from  the  act  of  record,  but  a 
slight  error  would  be  disregarded.^  The  date  of  the  certificate 
of  the  secretary  of  state,  appended  to  a  published  volume  of 
laws,  will,  in  the  absence  of  any  suggestion  which  may  lead  to 
more  accurate  inquiry,  be  taken  to  be  the  date  of  their  publi- 
cation.' 

In  the  constitution  of  Wisconsin  ^  it  is  provided  that  "  no 
general  law  shall  be  in  force  until  published."  The  words 
"  general  law,"  here  used,  have  the  same  meaning  as  public 
acts  in  their  ordinary  acceptation,  as  distinguished  from  pri- 
vate acts.  The  object  of  the  prohibition  was  the  protection  of 
the  people,  by  preventing  their  rights  and  interests  from  being 
affected  by  laws  which  they  had  no  means  of  knowing.  But 
all  are  bound  by  and  are  to  take  notice  of  public  statutes.' 

§110.  The  precise  time  of  taking  immediate  effect. —  At 
what  precise  time  does  a  statute  go  into  operation,  and  first 
have  force  as  law,  when  it  takes  immediate  effect?  Passing 
over  the  fiction  of  relation  to  the  first  day  of  the  session  which 
has  been  mentioned,  there  is  still  to  be  answered  the  question 
whether  it  takes  effect  at  the  beginning  of  the  day  of  its  pas- 
sage, at  the  beginning  of  the  next  day,  or  at  the  precise  mo- 
ment of  the  last  essential  act  in  its  enactment. 

The  maxim  that  the  law  takes  no  notice  of  the  fractions 
of  a  day  is  not  of  universal  application.  The  legal  quahty 
of  an  act  may  depend  on  when  it  was  done  with  reference 
to  other  acts  or  events  occurring  not  merely  on  the  same 
day  but  in  the  same  hour.  Instances,  in  great  variety,  will 
at  once  occur  to  the  professional  mind.  The  sequence  of 
such  related  facts  may  always  be  inquired  into,  unless  the  in- 
quiry under  consideration  is  an  exception.  What  shall  be 
accepted  as  the  commencement  of  a  period  of  a  given  num- 

i  Clare  v.  State,  5  Iowa,  509.  See  Case,  9  Wis.  264 ;  Berliner  v,  "Water- 
State  V.  Donehey.  8  id.  39G.  loo,  14  Wis.  378. 

-Mead  v.   Bagiiall,   15   W^is.    156;        •« See.  21,  art.  VII. 
Smith  V.  Hoyt,  14  id.  253.  5  Clark  v.  Janesville,  10  Wis.  136 ; 

3  State  V.  Foote,  11  Wis.  14 ;  Boyle's    State  ex  reL  Cotlu-en  v.  Lean,  9  Wis. 

284,  285. 


132  TIME  OF  TAKING  EFFECT. 

ber  of  days  is  an  inquiry  presently  to  be  considered.  That 
is  another  and  different  inquiry ;  such  a  period  need  not  neces- 
sarily be  computed  upon  fractions  of  a  day.  Any  general 
rule  as  to  commencement  of  a  period  of  several  days  might 
operate  justly.  An  act  which  is  made  to  operate  six  hours 
before  the  time  when  it  was  actually  enacted  and  passed  is 
liable  to  the  same  objection,  except  in  degree,  as  when  it  has 
a  commencement  six  days  or  six  years  before  its  enactmerit. 
Hardship  is  sometimes  the  result  of  an  act  taking  hnmediate 
effect,  and  every  consideration  of  humanity  and  justice  is  op- 
posed to  any  retroaction.  A  statute  commands  only  from  the 
time  it  has  the  force  of  law ;  it  should  not  be  accorded  a  be- 
ginning a  moment  earher  than  the  actual  time  of  its  enact- 
ment —  than  the  actual  tune  of  the  last  act  in  the  legislative 
process.  J^o  person  is  required  to  anticipate  the  enactment 
of  a  law,  though  he  may  be  charged  with  a  knowledge  of  it 
from  the  moment  of  its  adoption  if  it  at  once  goes  into  oper- 
ation. 

Lord  Mansfield  said  in  Combe  v.  Pitt :  ^  "  Though  the  law 
does  not  in  general  allow  of  the  fractions  of  a  day,  yet  it  ad- 
mits it  in  cases  where  it  is  necessary  to  distinguish ;  and  I  do 
not  see  why  the  very  hour  may  not  be  so  too,  where  it  is  nec- 
essary and  can  be  done." 

In  Minnesota  the  day  of  the  passage  is  excluded  where  the 
act  provides  that  it  shall  take  effect  "  from  and  after  its  pas- 
sage." ^  There  are  cases  which  hold  that  acts  taking  imme- 
diate effect  take  effect  from  the  first  moment  of  the  day  on 
which  they  were  passed.^  They  proceeded,  however,  on  un- 
satisfactory reasons.  Prentiss,  J.,  said,  in  the  Matter  of  Wel- 
man,  "  It  would  be  as  unsafe  as  it  would  be  unfit  to  aUow  the 
commencement  of  a  public  law,  whenever  the  question  may 
arise,  whether  at  a  near  or  distant  time,  to  depend  upon  the 
uncertainty  of  parol  proof,  or  upon  anything  extrinsic  to  the 
law,  and  the  authenticated  recorded  proceedings  in  passing 
it."  It  cannot  be  laid  down  as  constitutional  law  that  the 
commencement  of  public  laws  must  be  proved  or  provable  in 

1  3  Burr.  1423.  « Tomlinson   v.   Bullock,    L.  R.   4 

2  Parkinson  v.  Brandenburg,  35  Q.  B.  Div.  230 ;  Matter  of  Howes,  21 
lyiinn.  294.  See  State  v.  Messmore,  Vt  619 ;  Matter  of  Weknan,  20  id.  653. 
14  Wia  163,  174 


TIME    OF   TAKING    EFFECT.  133" 

this  manner.  Tlie  legislature  may  make  a  law  take  effect  on 
the  happening  of  an  event  which  has  to  be  ascertained  other- 
wise than  by  the  "  recorded  proceedings  in  passing  it."  The 
validity  of  a  statute  cannot  be  judically  ^determined  by  the 
court's  judgment  of  what  is  safe  and/i5. 

The  law  takes  notice  of  fractions  of  a  day  when  necessary. 
The  general  principle  declared  by  Lord  Mansfield  is  believed 
to  be  sound  and  established  by  the  weight  of  authority,  that 
where  it  is  necessary  to  justice  and  it  can  be  done,  the  law 
takes  notice  of  the  parts  of  a  day ;  then  the  precise  time  when 
an  act  is  done  may  be  shown.^  This  necessity  exists  when  an 
act  is  done  on  the  same  day  that  a  legislative  act  is  passed,  if 
that  statute  being  passed  afterwards  should  not  affect  such  act, 
or,  being  passed  before,  should  do  so. 

It  was  said  in  Grosvenor  v.  Magill : ^  "It  is  true  that  for 
many  purposes  the  law  knows  no  divisions  of  a  day ;  but  when- 
ever it  becomes  important  to  the  ends  of  justice,  or  in  order 
to  decide  upon  conflicting  interests,  the  law  will  look  into 
fractions  of  a  day  as  readily  as  into  the  fractions  of  any  other 
unit  of  time.^  The  rule  is  purely  one  of  convenience,  which 
must  give  way  whenever  the  rights  of  parties  require  it. 
There  is  no  indivisible  unity  about  a  day  which  forbids  one, 
in  legal  proceedings,  to  consider  its  component  hours,  any 
more  than  about  a  month  which  restrains  us  from  refrardins: 
its  constituent  days.  The  law  is  not  made  of  such  unreason- 
able and  arbitrary  rules."  The  weight  of  American  authority 
is  that  a  statute  which  is  to  go  into  effect  immediately  is  oper- 
ative from  the  instant  of  its  passage.* 

1  Wells  V.  Bright,  4  Dgy  &  Batt.  L.  ^  Matter  of  Richardson,  2  Story,  571 ; 
173 ;  Louisville  v.  Savings  Bank,  104  Gardner  v.  The  Collector,  6  Wall 
U.  S.  4G9;  Savage  v.  State,  18  Fla.  499;  Sti-auss  v.  Heiss,  48  Md.  292; 
970 ;  Bigelow  v.  WiUson,  1  Pick.  485 ;  Berry  v.  R  R  Co.  41  id.  464 ;  Legg  v. 
Juddv.  Fulton,  10  Barb.  117;  Lang  Mayor,  etc.  42  id.  211;  Louisville  v. 
v.  Phillips,  27  Ala.  311;  Clawson  v.  Savings  Bank,  104  U.  S.  409;  People 
Eichbauni,  2  Grant's  Cas.  130 ;  Gros-  v.  Clark,  1  Cal.  406 ;  Clark  v.  Janes- 
venor  v.  Magill,  37  111.  239 ;  Burgess  ville,  10  Wis.  136 ;  Parkinson  v.  Bran- 
V.  Salmon,  97  U.  S.  381 ;  Kennedy  v.  denburg,  35  Mmu.  294 ;  S.  C.  59  Am. 
Palmer,  6  Gray,  316;  Brainard  v.  R,  326;  Grosvenor  v.  Magill,  37  IlL 
Basluiell,  11  ConiL  17.  239 ;  Burgess  v.  Salmon,  97  U.  S.  381 

2  37  111.  239.  Kennedy    v.   Pahner,   6  Gray,   316 

3  2  Black.  Com.  140  and  notes.  Fan-child  v.  Gwynne,  14  Abb.  Pr.  121 


13J: 


TIME    OF   TAKING    EFFECT. 


§  111.  Computation  of  time  when  an  act  is  to  take  eflFect 
in  a  specified  number  of  days. —  Such  a  computation  must  be 
made  when  by  constitutional  or  statutory  provision  a  statute 
is  to  go  into  operation  in  a  specified  number  of  days  after  its 
passage,  or  after  the  adjournment  of  the  legislature,  or  is  to 
take  effect  in  a  given  time  after  its  passage  by  the  two  houses, 
in  the  absence  of  executive  action  upon  it.  Periods  of  time 
are  prescribed  in  statutes,  or  fixed  by  the  common  law,  for 
thi'ee  purposes :  First,  to  limit  the  time  within  which  only  some- 


Re  "Wynne,  Chase's  Dec.  227 ;  Osborne 
V.  Hiiger,  1  Bay,  176.  See  King  v. 
Moore,  Jeff.  (Va.)  8. 

In  the  Matter  of  Richardson,  supra. 
Story,  J.,  said :  "  It  may  not,  indeed, 
be  easy  in  all  cases  to  ascertain  the 
very  punctum  iemporis;  but  that 
ought  not  to  deprive  the  citizens  of 
any  rights  created  by  antecedent  laws 
and  vesting  riglits  iu  them.  In  cases 
of  doubt,  the  time  should  be  construed 
favorably  for  citizens.  The  legislature 
have  it  in  then*  power  to  prescribe 
the  veiy  moment  in  futuro  after  the 
approval  when  a  law  shall  have  ef- 
fect ;  and  if  it  does  not  choose  to  do  so, 
I  can  perceive  no  ground  why  a  coiu-t 
of  justice  should  be  called  on  to  sup- 
ply the  defect.  But  when  the  time 
can  be  and  is  fidly  ascertained  when 
a  bill  was  approved,  I  confess  I  am 
not  bold  enough  to  say  that  it  be- 
came a  law  at  any  antecedent  period 
of  the  same  day." 

In  Arnold  v.  United  States,  9 
Cranch,  104,  it  was  held  that  an  act 
takes  effect  from  its  passage ;  on  the 
day  of  its  passage ;  that  it  affected  a 
transaction  of  that  day,  on  the  rule, 
that  "  when  a  computation  is  to  be 
made  from  an  act  done,  the  day  on 
which  the  act  is  done  is  to  be  in- 
cluded." 

In  Louisville  v.  Savings  Bank,  104 
U.  S.  478,  the  com-t,  by  Harlan,  J., 
said :  "In  view  of  the  authorities  it 
cannot  be    doubted  that  the  courts 


may,  when  substantial  justice  re- 
quu-es  it,  ascertain  the  precise  hour 
when  a  statute  took  effect  by  the  ap- 
proval of  the  executive.  But  it  may 
be  argued  that  the  rule  does  not  ap- 
ply where  the  inquiry  is  as  to  the 
time  when  constitutional  provisions 
become  operative  by  popular  vote; 
that  a  popular  vote,  given  at  an  elec- 
tion covering  many  homrs  of  the  same 
day,  should  be  deemed  an  indivisible 
act,  effectual,  by  relation,  from  the 
moment  the  electors  entered  upon  the 
performance  of  that  act,  to  wit: 
from  the  opening  of  the  -polls.  But 
we  are  of  opinion  that  no  such  dis- 
tinction can  be  maintained.  In 
determining  when  a  statute  took  ef- 
fect, no  account  is  taken  of  the  time 
it  received  the  sanction  of  the  two 
branches  of  the  legislative  depart- 
ment, -vv'Iiich  sanction  is  as  essential 
to  the  vaUdity  of  the  statute  as  the 
approval  of  the  executive.  We  look 
to  the  final  act  of  approval  by  the 
executive  to  find  when  the  statute 
took  effect,  and,  when  necessary,  in- 
quii-e  as  to  the  horn-  of  the  day  when 
that  approval  was  in  fact  given.  So, 
we  perceive  no  sound  reason  why  the 
courts  may  not,  in  proper  cases,  in- 
quire as  to  the  hour  when  such  ap- 
proval became  effectual,  to  wit:  as 
to  the  time  when,  by  the  closing  of 
the  polls,  the  people  had  adopted  such 
provision."  See  Welch  v.  Hannibal, 
etc.  Ry.  Co.  26  Mo.  App.  358. 


,  TIME    OF   TAKING    EFFECT.  135 

thing  may  be  done ;  second^  to  limit  tlie  time  after  which  only 
something  may  be  done ;  tldrd,  to  fix  a  precise  tune  at  which 
only  something  may  be  done  or  commenced.  The  precise 
future  time  at  which  an  act  is  appointed  to  be  done  or  take 
effect,  determinable  by  computation  from  a  date  or  event,  is 
in  general  the  last  point  of  the  period ;  if  a  period  of  days,  the 
last  day.  No  fractions  of  a  day  being  recognized,  a  period  of 
days  may  for  all  purposes  be  computed  by  one  uniform  rule, 
unless  there  is,  in  a  particular  case,  a  different  intention  indi- 
cated. 

The  rule  now  supported  by  nearly  all  of  the  modern  cases 
is  that  the  tune  should  be  computed  by  excluding  the  day  or 
the  day  of  the  event  from  which  the  time  is  to  be  computed 
and  including  the  last  day  of  the  number  constituting  the 
specified  period.^  Thus,  if  an  act  is  to  take  effect  in  thirty 
days  from  and  after  its  passage,  passing  on  the  first  day  of 
March,  it  would  go  into  operation  on  the  31st  day  of  that 
month.  It  would  commence  to  operate  at  the  first  moment 
of  the  last  day  of  the  thirty,  ascertained  by  adding  that  num- 
ber to  the  number  of  the  date  of  passage. 

It  is  the  general  rule  for  computing  thne  consisting  of  days, 
weeks,  months  or  years.  In  such  a  computation  days  are  en- 
tu'e  days,  fractions  of  a  day  being  disregarded ;  -  and  whether 
the  computation  is  from  an  act  done,  or  from  a  day  or  the 
day  of  a  date,  the  day  of  such  act,  or  the  day  or  date  men- 
tioned, is  to  be  excluded.* 

1  Simmons  v.  Jacobs,  53  Me.  147 ;  Berry  v.   Clements,  9  Humpli.  312 ; 

Bemis  v.   Leonard,   118    Mass.  502;  S.C.llHow.  398.    See  Cook  v.  Moore, 

Stebbins  v.   Anthony,   5  Colo.   356 ;  95  N.  C.  1. 

Gai-ner  v.  Jolmson,  22  Ala.  494 ;  Hall  3  Rand  v.  Eand,  4  N.  H.  267 ;  Bemis 

V.  Cassidy,  25  jNlLss.  48 ;   Mitchell  v.  v.  Leonard,  118  Mass.  502 ;  Wiggin  v. 

Woodson,  37  id.  567 ;   Ex  parte  Dil-  Petei-s,  1  Met  127 ;  Seekonk  v.  Reho- 

lard,  08  Ala.  594 ;  HoUis  v.  Francois,  1  both,  8  Cush-  371 ;  Goode  v.  Webb,  53 

Tex,  118.  Ala.  452 ;  White  v.  Haworth,  21  Mo. 

-Brown  v.    Buzan,    24  Ind.   194;  App.  439;  Pyle  v.   Maulding,  7  J.J. 

Jacobs  V.  Gralmm,  1  Blackf .  392 ;  Cor-  Maish.  202 ;  Brackett  v.  Brackett,  61 

aoU  V.  :Movilton,  3  Denio,  12 ;   Griffin  Mo.  223 ;  Hart  v.  Walker,  31  id.  26 ; 

V.  Forrest,  49  :Mich.  309 ;  Dousman  v.  Walsh  v.  Boyle,  30  Md.  262 ;  Small  v. 

'O'Malley,  1  Doug.  (Mich.)  450 ;  Blake  Edi-ick,  5  Wend.  137 ;   Doyle  v.  Miz- 

V.  Crowniugshield,  9  N.  H.  304 ;  Port-  ner.  41  Mich.  549  ;  Lester  v.  Garland, 

laud  Bank  v.  Maine  Bank,  11  Mass.  15  Ves.  248;  Webb  v.   Fairuiauer,  3 

.204 ;  Mm-f ree  v.  Carmack,  4  Yerg.  270 ;  M.  &  W.  473 ;  Ex  parte  FaUon.  5  T.  E. 


13G 


TIME    OF    TAKING    EFFECT. 


§  112.  Some  cases,  both  English  and  American,  make  a  dis- 
tinction between  computations  from  an  act  done  and  those 
from  the  date  or  day  of  the  date,  inchiding  the  day  of  the  act 
done  in  the  former  and  excluding  the  day  of  the  date  in  the 
latter.'  But  that  distinction  is  not  now  recognized  in  England,^  ^ 
nor  in  but  few  of  the  states  in  this  country.^  The  rule  is  not 
so  absolute,  however,  but  that  the  day  of  the  act  done  may  be 
included  where  it  is  necessary  to  give  effect  to  the  obvious  in- 
tention; and  some  cases  assert  it  will  be  included  or  excluded, 
as  occasion  may  require,  to  prevent  an  estoppel  or  save  a  for- 
feiture.* 


283 ;  Young  v.  Higgon,  6  M.  &  W. 
49 ;  Pi-otection  Life  v.  Palmer,  81  111. 
88;  Sheets  v.  Selden,  2  WalL  177; 
C!ock  V.  Biinn,  6  Jolin.  326 ;  Hoffman 
V.  Duel,  5  id.  232 ;  GiUespie  v.  Wliite,  16 
id.  117 ;  Dayton  v.  Mclntyre,  5  How. 
Pr.  117 ;  Black  v.  Johns,  68  Pa.  St  83 ; 
Menges  v.  Frick,  73  Pa.  St  137 ;  Pres- 
brey  v.  Williams,  15  Mass.  193;  Bow- 
man V.  Wood,  41  III  203 ;  HaU  v.  Cas- 
sidy,  25  Miss.  48 ;  Columbia  T.  Co.  v. 
Haywood,  10  Wend.  422 ;  Page  v. 
Weymouth,  47  Me.  238 ;  Carothers  v. 
Wheeler,  1  Oregon,  194;  Irving  v. 
Humphreys,  Hopk.  364 ;  Vanderburgh 
V.  Van  Rensselaer,  6  Paige,  147 ;  Gor- 
ham  V.  Wing,  10  Mich.  486 ;  Bigelow 
V.  Wnison,  1  Pick.  487 ;  Judd  v.  Fulton, 
10  Barb.  117;  Snyder  t.  Wan-en,  2 
Cow.  518 ;  Sims  v.  Hampton,  1  S.  & 
R  411 ;  State  v.  Sclmierle,  5  Rich.  L. 
299 ;  Steamer  Jlary  Blane  v.  Beehler, 
12  Mo.  477 ;  Kimm  v.  Osgood's  Adm. 
19  id.  60 ;  Windsor  v.  Chma,  4  Greenlf. 
298 ;  Peai-pont  v.  Graham,  4  Wash.  C. 
C.  232 ;  Cromelien  v.  Brink,  29  Pa.  St 
522 ;  Homan  v.  Liswell,  6  Cow.  659 ; 
Weeks  v.  Hull,  19  Conn.  376 ;  Carson 
V.  Love,  8  Yerg.  215 ;  Duffy  v.  Ogden, 
64  Pa.  St  240.  See  Smith  v.  Harris, 
34  Ga.  182. 

iKing  V.  Adderley,  2  Doug.  463; 
NoiTis  V.  Hunch-ed  of  Gawtry,  Hob. 
139 ;  Castle  v.  Burditt  3  T.  R.  623 ; 
Glassington  v.  Rawlins,  3  East  4^07 ; 


Clayton's  Case,  5  Coke,  1 ;  Arnold  v 
United  States,  9  Cranch,  104 ;  Jacobs 
V.  Graham,  1  Blackf.  392 ;  White  v. 
Crutcher,  1  Bush,  472;  CMles  v. 
Smith's  Heirs,  13  B.  Mon.460;  Wood 
V.  Commonwealth,  11  Bush,  220. 

2  Lester  v.  Garland,  15  Ves.  248; 
Webb  V.  Fau-maner,  2  M.  &  W.  474 ; 
Ex  parte  FaUon,  5  T.  R.  283 ;  Yoimg 
V.  Higgon,  6  M.  &  W.  49 ;  Mercer  v. 
Ogilvy,  3  Baton,  434;  Hardy  v.  Ryle, 
9  Barn.  &  Cr.  603 ;  Pellew  v.  Inhab. 
of  Wonsford,  id.  134;  Rex  v.  Jus- 
tices, 4  Nev.  &  M.  378 ;  Robinson  v. 
Waddmgton,  13  Ad.  &  El.  (N.  S.)  753. 

3  Calvert  v.  WiUiams,  34  Md.  672; 
Sheets  v.  Selden,  2  WalL  177 ;  Owen 
V.  Slatter,  26  Ala.  551 ;  Elder,  Adm'r, 
V.  Bradley,  2  Sneed,  252;  Bemis  v. 
Leonard,  118  Mass.  502;  Sims  v. 
Hampton,  1  S.  &  R.  411 ;  Kimm  v. 
Osgood,  19  Mo.  60;  Pyle  v.  Mauld- 
mg,  7  J.  J.  Marsh.  202.  In  Ken- 
tucky the  coui'ts  include  the  ter- 
minus  a  g  wo  when  the  computation  ia- 
from  an  act  or  event  Chiles  v. 
Smith's  Heirs,  13  B.  Mon.  460 ;  Bat- 
man V.  Megowan,  1  Met  (Ky.)  548 ; 
Wliite  V.  Cratcher,  1  Bush,  473 ;  Wood 
V.  Commonwealth,  11  id.  220;  Hand- 
ley  V.  Cunningham,  12  id.  402 ;  Mooar 
V.  Covington  City  Nat  Bank,  80  Ky. 
305. 

nVindsor  v.  China,  4  Greenlf.  398;. 
Presbrey  v.  WUliama,  15  Mass.  193 ; 


TIME    OF    TAKING    EFFECT.  137 

"  From  "  is  a  term  of  exclusion,'  and  tlie  words  '•  to,"  "  till  " 
or  "until,"  inclusive.^  ISTot  that  tliey  import  this  in  all  con- 
nections, but  in  their  use  to  indicate  the  beginning  and  ending 
of  spaces  of  time.  If  a  given  number  of  days  is  requu-ed  to 
elapse  between  one  act  and  another,  the  day  of  the  first  is  ex- 
cluded, and  the  day  of  the  other  included.  An  intention  to 
exclude  both  days  may  be  inferred  from  language  clearly  ex- 
pressing that  intent ; '  as  where  a  statute  or  rule  of  court  re- 
quires a  certain  number  of  clear  days,*  or  as  has  been  held 
when  "  at  least "  a  given  number  of  days  is  requu^ed.* 

The  rule  is  so  generally  recognized  to  exclude  the  first,  or 
termmus  a  quo,  and  to  include  the  last,  or  terminus  ad  quern, 
that  it  requires  no  particular  words  for  its  application.'  The 
terminus  a  quo,  so  far  as  it  is  descriptive  of  a  period  of  time, 
is  coincident  with  the  day,  or  day  of  the  act  from  which  the 
computation  is  to  be  made ;  that  day  is  indivisible ;  the  period 
to  be  computed  is  another  and  subsequent  period,  which  be- 
gins when  the  first  period  is  completed.  The  last  day  of  that 
period  is  an  indivisible  point  of  time  —  the  terminus  ad  quern. 
When  that  point  is  reached  the  period  is  complete.  Dies  i'n- 
ceptus  pro  completo  hahiturJ 

§  113.  Where  a  summons  or  notice  is  required  to  be  served 
or  given  a  specified  number  of  days  for  a  sale,  to  require  ap- 

Williamson  v.  Farrow,  1  Bailey,  611 ;  522 ;  The  Queen  v.  Tlie  Justices,  etc. 

Steamboat  Mary  Blane  v.  Beehler,  12  8  Ad.  &  El.  932 ;  In  re  Prangley,  4  Ad. 

Mo.  477 ;  Pugh  v.  Duke  of  Leeds,  2  &  EL  781 ;  O'Connor  v.  Towns,  1  Tex. 

Cowp.  714 ;  Price  v.  Whitman,  8  CaL  107 ;  Walsh,  Trustee,  v.  Boyle,  30  Md. 

412,  417 ;  O'Connor  v.  Towns,  1  Tex.  266 ;  SmaU  v.  Edrick,  5  Wend.  137. 

107.  See  Columbia  T.  Co.  v.  Haywood,  10 

1  Peables  v.  Hannaford,  18  Me.  106.  Wend.  423 ;   Stebbins  v.  Anthony,  5 

2  Thomas  v.  Douglass,  2  John.  Cas.  Colo.  348,  360 ;  Yoimg  v.  Higgon,  6 
226 ;  Bunce  v.  Reed,  16  Barb.   347 ;  M.  &  W.  49. 

Dakms  v.  Wagner,  3  DowL  P.  C.  535 ;  ^  A.  rule  made  June  6th  to  plead 

Webster  v.  French,  12  111.  302.     See  in  four  duys  gives  the  party  all  of 

People  V.  Walker,  17  N.  Y.  502.  the  10th  for  that  purpose.     Clark  v. 

^Douseman  v.  O'Malley,  1   Doug.  Ewing,    87    111.    344;     PeppereU    v. 

(Mich.)  450 ;  SaUee  v.  Ireland,  9  Mcli.  Biurell,  2  Dowl.  P.  C.  674.     "  By  the 

154 ;  Cook  v.  Gray,  6  Ind.  335 ;  Rob-  January  20  "  includes  that  daj',  Hig- 

inson,  Adm'r,  v.  Foster,  12  Iowa,  186 ;  ley  v.  Gilmer,  3  Mont  433,  and  until 

Isabelle  v.  Iron  Cliffs  Co.  57  Mich.  120 ;  the  office  opens  the  next  morning. 

Powers'  Appeal,  29  Mich.  504.  Oxley  v.  Bridge,  1  Doug.  67. 

*  King  V.  Herefordshii-e,  3  Bam.  &  '  Mercer  v.  Ogilvy,  3  Baton,  434, 
Aid.  581.  442. 

*  Zouch  V.  Empsey,  4  Bai-n.  &  Aid. 


138  TIME    OF    TAKIXG    EFFECT, 

pearance,  or  of  a  proceeding  to  take  place  at  a  precise  time, 
the  day  of  service  is  excluded ;  the  sale  or  proceeding  may  be 
on  the  last  of  the  required  number  of  days,  and  the  appear- 
ance must  be  on  or  before  that  day.^  The  same  rule  apphes 
where  a  period  is  defined  to  be  computed  from  a  given  act  or 
date  where  within  such  period  a  right,  power  or  authority 
may  be  exercised,  or  beyond  which  such  right,  power  or  au- 
thority may  immediately  attach  and  have  force.  The  right 
to  appear  and  plead  is  a  right  so  limited  and  defined  in  point 
of  time ;  if  not  claimed  and  exercised  within  the  period  given 
therefor  there  is  a  default ;  this  is  complete  on  the  expiration 
of  that  period,  and  the  right  of  the  other  party  to  proceed 
thereon  attaches  at  once  on  the  expu'ation  of  that  period.  At 
the  same  point  of  thne  one  right  exj^ires  and  another  becomes 
operative. 

§  114.  The  right  of  appeal  is  one  to  be  exercised  within  a 
determinate  period.  That  period  is  computed  from  the  date 
of  the  judgment.  The  day  of  the  judgment  is  excluded  in  the 
computation.^  The  right  of  redemption  is  another  to  be  exer- 
cised within  a  certain  time,  and  it  is  computed  after  a  sale. 
The  day  of  sale  is  excluded  from  the  computation.*  The  re- 
demption period  expires  with  the  last  day,  and  it  is  only  after 
its  expiration  that  the  sale  can  be  treated  as  absolute.* 

1  Kerr  v.  Haverstick,  94  Ind.  180 ;  Adm'r  v.  Walker,  31  Mo.  26 ;  Rex  v. 

Vandenbm-gh  v.  Van  Rensselaer,  6  Justices,  4  Nev.  &  Man.  370.    See  City 

Paige,    147 ;   Irving    v.  Humplu-eys,  Coimcil  v.  Adams,  51  Ala  449. 

Hopk.   364 ;  White    v.   German  Ins.  2  Carotliers  v.  Wheeler,  1  Oregon, 

Co.  15  Neb.  660;  Monroe  v.  Paddock,  194;  Smith  v.  Cassity,  9  B.  Mon.  193 

75  Ind.  422 ;  Walsh  v.  Boyle,  30  Md.  (overruled  in  Chiles  v.  Smith's  Heu-s, 

262 ;  Bowman  v.  Wood,  41  IIL  203 ;  13  id.  460) ;  Ex  parte  Dean,  2  Cow. 

Vairin    v.  Edmonson,  5    Gilm.  270;  605.    And  see  Commercial  Bank  v. 

Forsyth  v.  Warren,  62  IIL  68 ;  Hall  Ives,  2  Hill,  355. 

V.   Cassidy,   25   Miss.  48 ;    Columbia  *  Gorham  v.  Wing,  10  Mich.  486 ; 

T.  Co.  V.  Haywood,   10  Wend.  423 ;  White  v.  Haworth,  21  Mo.  App.  439. 

Bacon  v.   Kennedy,    56  Mich.   329 ;  *  People  v.  The  Sheriff  of  Broome, 

Dexter  v.   Cranston,  41   Mich.   448 ;  19  Wend.  87 ;  Bigelow  v.  Willson,  1 

Doyle  V.  IMi^ner,  41  Mich.  549 ;  See-  Pick.  485 ;  Cromihen  v.  Brink,  29  Pa. 

konk  V.  Rehoboth,  8  Cush.  371 ;  Bemis  St.  522.     In  this  case  the  com-t  say : 

V.  Leonard,  118  Mass.  502 ;  Towell  v.  "A  day  is  always  an  indivisible  point 

Hollweg,  81  Ind.  154 ;  Cock  v.  Bunn,  of  time  except  where  it  inust  be  cut 

6  John.  320 ;  Hoffman  v.  Duel,  5  id.  up  to  prevent  injustice.     In  the  sense 

232 ;  Gillesi^ie  v.  White,  16  id.  117 ;  of  these  statutes  it  has  neither  length 

Cressey  v.  Parks,  75  Me.  387 ;  Hart's  nor  breadth,  but  simply  position  with- 


TIME    OP'    TAKING    EFFECT. 


130 


Eights  of  action  may  be  asserted  during  tlie  pci'iod  defined 
'in  the  statutes  of  limitation.  The  rule  would  philosophically 
include  in  the  period  of  limitation  every  day  in  which  an  action 
could  be  brought,  as  the  rights  of  appeal  and  redemption  in- 
clude every  day  in  which  those  rights  could  be  exercised.  The 
right  to  sue  commences  at  once  after  the  maturity  of  the  debt, 
or  right  of  action.  Tlie  day  on  which  it  matures  is  excluded 
for  the  same  reason  that  the  day  of  sale  is  excluded  in  reckon- 
ing the  time  of  redemption,  or  the  day  on  which  the  judgment 
is  rendered  in  computing  the  time  for  appeal.  The  sale  or 
rendition  of  judgment  are  acts  which  do  not  occupy  the  whole 
day ;  but  fractions  not  being  regarded,  they  are  treated  the 
same  as  though  they  took  place  in  every  part  of  the  day,  or 
the  day  as  having  no  magnitude,  as  a  mere  point  of  time.^ 


out  magnitude.  If  the  time  of  re- 
demption were  fixed  at  one  day  after 
the  sale,  that  day  could  not  be  the 
day  of  the  sale ;  for  it  might  be  made 
at  the  last  moment  of  the  day,  and 
the  owner  being  thus  prevented  from 
tendering  on  that  day,  would  lose  liis 
right  The  time  mentioned  must 
therefore  be  the  following  day.  So 
of  one  year,  or  of  two  years."  Ed- 
mundson  v.  Wragg,  104  Pa.  St.  500. 
1  In  Presbrey  v.  Wilhams,  15  Mass. 
192,  the  court  say :  "  By  the  statute 
of  Umitations  it  was  intended  that 
the  plaintiff  should  have  f  uU  six  years, 
and  no  more,  witliin  wliich  to  bring  his 
action.  In  this  case  he  might  have 
brought  his  action  on  the  1st  of  No- 
vember, as  upon  a  new  promise  then 
made  (supposing  that  the  action  had 
l)een  previously  barred  by  the  stat- 
ute), and  if  he  may  also  commence  it 
on  the  1st  day  of  November,  1817,  it 
Avould  make  seven  first  days  of  No- 
vember in  the  six  j^ears  prescribed 
by  the  statute."  The  facts  of  this 
case  and  that  of  Meuges  v.  Frick,  73 
Pa.  St  137,  are  not  such  as  to  fairly 
iUusti-ate  the  rule,  for  in  both  cases 
the  right  of  action  matured  on  the 
day  included  in  the  former  and  ex- 


cluded in  the  latter  in  computuig  the 
period  of  limitations.  It  is  said  that 
the  new  promise  reviving  a  baiTed 
debt  was  made  on  November  1,  1810, 
and  might  have  been  sued  on  that 
day.  The  new  promise  hke  the  ren- 
dition of  a  judgment  or  sale,  though 
an  act  occupying  but  a  moment, 
may  be  the  first  or  last  moment  of 
the  twenty-four  hom-s.  As  a  fact 
from  which  time  is  reckoned  they 
occupy  the  day, —  the  day  is  but  a 
pouit  of  time.  In  reckoning  a  period 
from  that  act,  it  is  considered  in  law 
that  there  is  not  a  moment  of  the  day 
of  such  act  subsequent  to  it  The  act 
and  the  day  are  identical  in  time  — 
space  —  a  mere  point  We  may  sup- 
pose a  new  promise  made  which  re- 
vives a  debt  and  an  action  brought 
on  it  the  same  day ;  so  we  may  sup- 
pose a  redemption  from  a  sale  on  the 
day  of  the  sale,  or  an  appeal  from 
a  judgment  on  the  day  when  it  was 
rendered.  Then  to  protect  the  right 
of  suit,  redemption  or  appeal,  a  coui-t 
would  disregard  the  fiction  that  there 
are  no  fractions  of  a  day  and  ascer- 
tain if  the  action  wixs  brought  after 
the  1  ight  accrued,  and  so  in  the  other 
cases  whether  tlie  right  exercised  ex- 


140 


TIME    OF    TAKIXG    EFFECT. 


§  115.  When  Sundays  are  included  or  excluded. —  For 

secular  pm^poses  Sundays  are  dies  non  utiles.     In  many  con- 


istecL  See  ante,  §  110.  Paul  v.  Stone, 
112  jMass.  27,  confii-ms  tliis  view.  The 
statute  bai-red  an  action  against  an 
administrator  unless  commenced 
witliin  two  years  "  from  the  time  of 
his  giving  bond."  The  court  adopt 
the  language  of  AVilde,  J.,  in  Bigelow 
V.  WiUson,  1  Pick.  485,  that  "the 
words  '  time  of  executing  the  deed,' 
used  in  tlie  statute,  mean,  in  legal  ac- 
ceptation, the  day  of  dehvery,  which 
is  the  same  as  '  the  date '  or  '  the  day 
of  the  date.'"  The  following  cases 
are  to  the  same  effect:  Steamboat 
Mary  Plane  v.  Beeliler,  12  Mo.  477 ; 
Viti  V.  Dixon,  id.  479 ;  Blackman  v. 
Nearing,  43  Conn.  56;  Cornell  v. 
Moulton,  3  Denio,  12. 

The  case  of  McGraw  v.  Walker,  2 
Hilt  404,  is  not  like  the  others.  There 
a  note  was  payable  on  the  1st  day 
of  October  and  therefore  became  due 
on  the  4th.  At  the  expiration  of 
that  day  an  action  accnied  and  suit 
could  have  been  brought  on  the  5th. 
The  statute  commenced  ranning  on 
and  including  that  day  —  and  hence 
expired  with  the  4th  of  October  in 
the  sixth  year  thereafter  —  imless  the 
language  of  the  statute  of  limitations 
excludes  the  first  day  upon  which  an 
action  could  be  brought.  It  requires 
an  action  to  be  brought  ^vitliin  the  pre- 
scribed period  "  after  the  cause  of  ac- 
tion accrued."  The  inquiry  narrowly 
is.  Does  a  party  have  the  prescribed 
fjeriod  and  an  additional  day  to  bring 
his  action?  It  is  the  writer's  opinion 
tliat  the  first  day  when  he  can  bring 
suit  is  the  first  day  after  the  accrual 
of  the  action  and  part  of  the  pre- 
scribed period  of  Hmitation. 

If  the  computation  must  be  made 
backwards  f rcjm  a  day  or  proceechng, 
it  is  stiU  a  period  to  be  ascertained  by 
excluding  one  day  and  including  an- 


other. Though  the  day  from  which 
the  computation  has  to  be  made  is 
the  same  sort  dies  a  quo,  in  the  reck- 
oning, it  is  yet  the  expu-ation  of  the 
period.  The  same  rule  of  computa- 
tion apphes;  such  periods  are  not 
construed  to  be  periods  of  clear  days ; 
one  terminus  is  included  and  the 
other  excluded.  Wliile  it  would  seem 
more  philosophical,  and  preserve  a 
symmetiy  in.  the  apphcation  of  the 
rule  Avhich  excludes  the  terminus  a 
quo,  as  in  Hagerman  v.  Ohio  Buildings 
etc.  Co.  25  Ohio  St.  186,  stiU  the  re- 
sult is  the  same,  when  the  terms  are 
ti-ansposed.  Nortlu-op  v.  Cooper,  23^ 
Kan.  432. 

In  a  veiy  learned  and  elaborate 
opinion  in  Stebbins  v.  Anthony,  5 
Colo.  348,  Beck,  J.,  remarks  that "  The 
iTile  of  the  common  law,  and  the  rule 
generally  adopted  by  the  coiu-ts  of  the 
several  states,  is  to  include  one  day 
and  to  exclude  the  other,  some  coui'ts 
including  the  fir-st  day  in  the  specified 
time  in  the  computation,  and  ex- 
cluding the  last  day.  Some  coiu-ts 
exclude  the  first  day,  and  include 
the  last,  wlule  other  courts  vaiy  then- 
practice  according  to  the  pliraseology 
of  the  statute  under  consideration, 
in  some  instances  including  the  last 
day,  and  in  others  including  both 
days."  He  concludes  that  the  rule 
sustained  by  the  general  current  of 
modern  authority  is  that  "  where  a 
statute  requires  an  act  to  be  per- 
formed a  certain  number  of  days 
prior  to  a  day  named,  or  witliin  a 
definite  period  after  a  day  or  event 
specified;  or  where  time  is  to  be 
computed  either  prior  to  a  day  named 
or  subsequent  to  a  day  named,  the 
usual  rule  of  computation  is  to  ex- 
clude one  day  of  the  designated 
period  and  to    include  the    other. "^ 


TIME    OF    TAKING    EFFECT. 


141 


stitutions  they  are  excepted  from  the  time  allowed  the  execu- 
tive for  action  upon  a  bill  which  is  delivered  to  him  alter  its 
passage  by  the  two  branches  of  the  legislature.  "Where  that 
is  the  case,  Sundays  are  excluded  from  the  computation.  Thus, 
under  such  a  provision  in  the  federal  constitution  allowing  ten 
days,  excepting  Sundays,  an  act  so  passed  and  submitted  to 
the  president  on  Saturday,  the  19th  of  February,  would,  in 
case  of  his  non-action,  take  effect  on  the  3d  of  March  ensuing.' 
In  the  absence  of  positive  written  law  excluding  Sundays  from 
a  period  of  days  prescribed  for  any  purpose,  they  are  counted, 
even  though  the  period  ends  on  Sunday.^     Where  a  period 


Bowman  v.  Wood,  41  IlL  203 ;  Vairin 
V.  Edmonson,  5  Gilm.  270;  Forsyth 
V.  AVairen,  62  IlL  68 ;  Smith  v.  Rowles, 
85  Ind.  2G4 ;  Rhoades  v.  Delaney,  50 
Ind.  253 ;  Lougliridge  v.  Huntington, 
56  Ind.  253;  Meredith  v.  Chancey, 
59  Ind.  466 ;  Fox  v.  AllensviUe,  46  Ind 
31;  HiU  V.  Pressley,  96  Ind.  447; 
Swett  V.  Sprague,  55  Me.  190 ;  Gantz 
V.  Toles,  40  Mich.  725;  Dexter  v. 
Shepard,  117  Mass.  480;  Frothing- 
ham  V.  March,  1  Mass.  247 ;  Early  v. 
Doe  ex  dem.  Homans,  16  How.  615 ; 
Dexter  v.  Cranston,  41  Mich.  448; 
Scrafford  v.  Gladwin  Supervisors,  id. 
647 ;  Powers'  Appeal,  29  Mich.  504 ; 
Bacon  v.  Kennedy,  56  IVIicli.  329 ;  Isa- 
beUev.  Iron  Chffs  Co.  57  Midi.  120. 
But  m  Ward  v.  Walters,  63  Wis. 
44,  Taylor,  J.,  thus  states  the  docti'ine : 
"  In  the  absence  of  any  statutory  pro- 
vision governing  the  computation  of 
time,  the  authorities  are  uniform  that 
where  an  act  is  required  to  be  done  a 
certain  number  of  days  or  weeks  be- 
fore a  certain  other  day  upon  which 
another  act  is  to  be  done,  the  day 
upon  which  the  lii-st  act  is  to  be  done 
must  be  excluded  from  the  computa- 
tion and  the  whole  niunber  of  the 
days  or  weeks  must  intervene  before 
the  day  for  doing  the  second  act" 
The  same  com-t,  in  Wright  v.  For- 
restal,  65  AVis.  348,  speaking  by  the 
same  learned  judge,  said :  "  The  lan- 


guage [of  the  statute]  is :  '  Tlie  reso- 
lution shaU  he  over  at  least  four  weeks 
after  its  introduction,  and  no  action 
shall  be  taken  by  the  common  coun- 
cil, if  within  that  time  a  remon- 
sti'ance,'  etc.  The  question  was  i)re- 
sented  to  the  councU  when  the  four 
weeks  expked  so  that  they  might  act 
on  the  same.  They  evidently  con- 
sti'ued  it,  as  men  ordinarily  would, 
that  a  week  was  the  period  of  time 
extending  from  Monday  of  one  week 
to  Monday  of  the  next  week  follow- 
ing, and  not  vrntil  Tuesday  of  such 
week,  and  that  the  resolution,  if  in- 
ti'oduced  on  Monday,  had  laid  over 
four  weeks  when  the  fourth  Monday 
thereafter  had  arrived,  and  that  they 
were  at  hberty  to  act  upon  it  then. 
AVe  think  this  is  the  natural  construc- 
tion of  the  act,  and  clearly  within 
the  intention  of  the  legislatvu-e." 

1  See  Price  v.  Whitman,  8  CaL  412. 

^Taj'lor  V.  Palmer,  31  CaL  244; 
Miles  V.  JIcDermott,  id.  272 ;  Cliicago 
V.  Vulcan  Iron  Works,  93  IlL  222; 
Ex  parte  Dodge,  7  Cow.  147 ;  King  v. 
DowdaU,  2  Sandf.  131 ;  Anonymous. 
2  HiU,  375;  Harrison  v.  Sager,  27 
]Micli.  476;  Haley  v.  Yoimg,  134 
Mass.  364 ;  Broome  v.  Wellington,  1 
Sandf.  660 ;  Ready  v.  Chamber hn,  52 
How.  Pr.  123 ;  National  Bank  v.  Will- 
iams, 46  Mo.  17;  CresweU  v.  Green, 
11  Eaijt,  537 ;  Ex  parte  Simpkin,  105 


142  TIME    OF    TAKING   EFFECT, 

less  tlian  a  week  is  prescribed  by  statute,  it  has  sometimes 
been  held  that  an  intervening  Sunday  should  not  be  counted, 
nor  if  it  be  the  last  day  of  the  period,^  This  appears  to  be  the 
settled  rule  in  Massachusetts.^  It  is  not  universally  adhered 
to  as  to  periods  of  more  than  one  or  two  days.^  Subject  to 
this  qualification,  where  the  last  day  is  Sunday,  any  act  re- 
quired by  statute  to  be  done  within  the  period  must  be  done 
before  that  day.  For  such  acts  the  period  j)ractically  ends  on 
the  preceding  day.^  In  Pennsylvania  a  different  rule  prevails. 
There,  in  such  case,  the  act  may  be  done  oTi  Monday.^ 

In  Hughes  v.  GritRths,"  Erie,  C.  J.,  said :  "  I  am  of  opinion 
that  when  the  last  of  the  seven  days  [a  statutory  period]  hap- 
pens to  faU  on  a  day  which  is  declared  to  be  a  holiday,  and  on 
which  the  court  cannot  act,  the  party  has  until  the  next  fol- 
lowinof  dav  on  which  the  court  can  act  to  issue  the  writ.  It 
seems  to  me  that  a  distinction  between  a  thing  which  is  to  be 
done  by  the  court  and  a  mere  act  of  a  party  is  maintainable."  ^ 

If  the  period  is  fixed  by  contract,  or  is  a  rule  of  court  regu- 
lating mere  practice,  and  it  ends  on  Sunday,  that  day  is  ex- 
cluded, and  the  period  will  be  deemed  to  include  Monday.* 

Eng.  C.  L.  392 ;  Peacock  v.  Regina,  93  v.  Green,  14  East,   537 ;  Peacock  v. 

id.  264 ;  Eowberry  v.  Morgan,  9  Ex.  Regina,  93  Eng.  C.  L.  262 ;  Taylor  v. 

730.    See  Harker  v.  Acklis,  4  Pa.  St.  Corbiere,  8  How.  Pr.  385. 
515 ;   Sims  v.   Hampton,    1  S.  &  R.        ^  Ex  parte  Simpkin,  105  Eng.  C.  L. 

411.  392 ;  Queen  v.  The  Justices,  7  Jm'ist, 

1  Anonymous,  2  Hill,  375 ;  Drake  v.  396 ;  Alderman  v.  Plielps,  15  Mass. 
Andrews,  2  Mich.  203 ;  National  Bank  225 ;  Cressey  v.  Parks,  75  Me.  387. 

V.  Williams,  46  Mo.  17 ;  Wliipple  v.  *  Edmundson  v.  Wragg,  104  Pa.  St. 

WilUams,  4  How.  Pr.  28 ;  Wathen  v.  500,  502. 

Beaumont,  11  East,  271 ;  Rex  v.  El-  6  106  Eng.  C.  L.  332. 

kins,  4  Burr.  2130.  7  See  Harrison  v.  Sager, ,  27  Mich. 

2  Alderman  v.  Phelps,  15  Mass.  225 ;  476. 

Thayer  v.  Felt,  4  Pick.  354 ;  Penniman        8  Cock  v.  Bunn,  6  John.  326 ;  Borst 

V.    Cole,    8    Met.    496 ;    Mclniff e    v.  v.  Griffin,  5  Wend.  84 ;  Bissell  v.  Bis- 

Wheelock,  1  Gray,  600;  Hamium  v.  sell,    11    Barb.    96;    Anonymous,    1 

TourteUott,  10  Allen,  494 ;  Cunning-  Sti-ange,  86 ;  BuUock  v.  Lincoln,  2  id. 

ham  V.  JMahan,  112  Mass.  58.  914 ;  StucUey  v.  Sturt,  id.  782 ;  Lee  v. 

3  Harrison  v.  Sager,  27  Mich.  476 ;  Carlton,  3  T.  R.  642 ;  Solomons  v.  Free- 
Simonson    v.   Durf  ee,   50  ]\Iich.   80 ;  man,  4  id.  557 ;  Harbord  v.  Perigal,  5 
Cressey  v.  Parks,  75  Me.  387 ;  State  v.  id.  210 ;  Asmole  v.  Goodwin,  2  Salk. 
Wheeler,  64  id.  532 ;  CarviUe  v.  Addi-  024 ;  ShadweU  v.  Angel,  1  Burr.  56 
ton,  62  id.  459 ;  Tuttle  v.  Gates,  24  id.  Simonson    v.   Durfee,   50  ]\Iicli.   80 
395 ;    Hales  v.   Owen,   2    Salk.   625 ;  Morris  v.  Barrett,  97  Eng.  C.  L.  139 
Asmole  v.  Goodwin,  id.  624 ;  Creswell  Mark's  Ex'r  v.  RusseU,  40  Pa.  St.  372 


TIME    OF   TAKING    EFFECT. 


14[ 


When  the  time  for  the  performance  of  a  contract,  according 
to  its  terms,  expires  on  Sunday,  a'performance  on  the  follow- 
ing Monday  is  good.^  There  is,  however,  an  important  excep- 
tion to  this  rule.  "Where  days  of  grace  are  allowed  by  the 
law  merchant,  and  the  last  day  of  grace  falls  on  Sunday,  the 
act  for  which  such  days  are  allowed  must  be  done  on  Satur- 
day.2 


Lewis  V.  Calor,  1  Fost  &  Fin.  306 ; 
Muir  V.  Galloway,  61  Cal  498.  See 
Hughes  V.  Griffiths,  106  Eng.  C.  L. 
332. 

1  Hammond  v.  American  Ins.  Co. 
10  Gray,  306 ;  Salter  v.  Burt,  20  Wend. 
205;  Avery  v.  Stewart,  2  Conn.  69; 


Post  V.  Garrow,  18  Neb.  682.    But  see 
Kilgour  V.  Miles,  6  Gill  &  J.  268. 

2  Anonymous,  2  HiU,  375;  Camp- 
bell V.  International  Life,  4  Bosw. 
317 ;  Howard  v.  Ives,  1  Hill,  263 ;  Sal- 
ter V.  Burt,  20  Wend,  205 ;  S.  C.  33 
Am.  Dec.  530. 


CHAPTER  YI. 

REQUIREMENT  OF  GENERAL    LAWS   AND   THAT  THEY  BE  OP 
UNIFORM  OPERATION. 


116.  Constitutional  requirements. 

117.  They  are  mandatory. 
120-123.  General  laws,  or  laws  of 

general  nature. 
124-126.  Requii'ed  uniform  opera- 
tion. 


127-129.  Special  and  local  laws. 
130.  Amendatory  and  curative  acts 

may  not  interrupt  uniform 

operation- 


§  116.  Constitutional  requirements. —  It  is  the  aim  of  tlie 

government  to  provide  just  and  equal  laws,  and  to  prevent,  as 
far  as  possible,  enactments  which  are  not  such.  The  accom- 
plishment of  this  purpose  is  in  part  intended  to  be  secured  by 
the  framers  of  state  constitutions  by  adopting  therein  certain 
provisions,  mandatory  to  the  legislature,  prohibiting  special  or 
local  laws  on  certain  enumerated  subjects,  and  as  to  all  others, 
either  where  general  laws  exist,  or  where  they  can  be  made 
applicable. 

Another  provision  adopted  in  several  states  requires  that 
all  laws  of  a  general  nature  shall  have  a  uniform  operation 
throughout  the  state.  This  requirement  is  not  confined  to 
the  subjects  enumerated  in  the  prohibition  of  special  or  local 
laws ;  nor  is  it  a  mere  repetition  in  substance  of  the  general 
injunction  to  pass  general  laws  where  they  can  be  made  appli- 
cable. 

Laws  of  a  general  nature  are  those  which  relate  to  subjects 
of  that  nature,  and  deal  generally  with  them.  The  require- 
ment involves  the  question  what  is  such  a  subject,  and  how 
comprehensively  it  must  be  treated  in  legislative  acts.  Laws 
to  which  the  requirement  is  applicable  must  be  so  framed  as 
to  have  a  uniform  operation  throughout  the  state. 

§  117.  These  constitutional  provisions  mandatory. —  They 
are  mandatory  to  the  legislature ;  and  a  compliance  with  them 
is  necessary  to  the  validity  of  legislation.  Whether  a  particu- 
lar act  is  conformable  or  not  is  a  judicial  question;  that  is, 


KEQUIKEMENT    OF    GENERAL    LAWS.  145 

the  courts  have  power  to  determine  it,  and  they  will  hold  any 
act  void  which  violates  either  of  these  regulations,'  with  one 
exception.  This  exception  is  the  question  Avhether  on  a  non- 
enumerated  subject,  not  of  a  general  nature,  a  general  law 
can  be  made  applicable.  That  is  a  legislative  question.  When 
a  special  act  has  been  passed,  in  such  a  case,  it  implies  that  in 
the  legislative  judgment  a  general  act  could  not  ho  made  ap- 
plicable. It  is  a  conclusive  implication,  and  that  judgment  is 
final ;  the  courts  will  not  enter  at  all  upon  the  inquiry ;  they 
will  accept  the  judgment  of  the  legislature  as  exercised  within 
its  exclusive  legislative  domain,  and  give  it  effect.^  These  re- 
quirements are  prospective,  and  do  not  apply  to  or  affect  the 
validity  of  existing  statutes.' 

§  118.  If  a  general  law  exists  which  is  applicable  to  a  subject, 
the  question  whether  such  a  law  can  be  made  applicable  is  re- 
solved. The  legislature  has  by  the  enactment  of  a  general 
laAV  practically  decided  the  question.  Hence  if,  while  such  a 
general  law  is  in  force,  a  special  or  local  law  is  passed  affect- 
ing the  same  subject  and  modifying  the  general  law,  the  ques- 
tion of  its  validity  is  judicial ;  it  wall  be  held  invalid  in  the 
case  supposed,  for  an  applicable  general  law  being  in  existence, 
it  is  no  longer  a  question  w^hether  such  a  law^  can  be  made  ap- 
plicable ;  therefore  the  special  or  local  law^  is  prohibited.^  The 
injunction  to  pass  general  laws  when  they  can  be  made  appli- 
cable is  imperative  as  to  subjects  of  a  general  nature,  where 

iFalk,  Ex  pai-te,  43  Ohio  St.  683;  » State  v.  Barbee,  3  Ind.  258 ;  Brown 

State  V.  Powers,  38  id.  54 ;  State  ex  v.   State,  23  Md.  503.    By  the  IMis- 

rel.  V.  Supervisors,  25  Wis.  339 ;  State  souii  constitution  of  1875  tliis  ques- 

ex  reL  v.  Riordau,  24  id.  484.  tion  is  made  judicial    It  is  legisla- 

2  Gentile   v.    State,    29    Ind.  409 ;  tive  by  the  terms  of  the  New  York 

Marks  v.   Trustees   of   Purdue  Uni-  constitution,  section  1,  article  YIII. 

versity,  37  id.  IGl ;  Kelly,  Treasiu-er,  Hosier    v.     Hilton,    15     Barb.    657 ; 

V.  State,  92  id.  236 ;  State  v.  Tucker,  United  States  Tr.   Co.   v.  Brady,  20 

46  id.  355 ;  State  v.  County  Court,  50  Barb.  119 ;  People  v.  Bowen,  21  N.  Y. 

Mo.  317 ;  S.  C.  11  Am.  R.  415 ;  State  v.  517 ;  30  Barb.   24.     The  New  Jersey 

''County  Com-t,  51  Mo.  82 ;  HaU  v.  Bray,  constitution  in  this  respect  is  like  that 

id.  288 ;  St  Louis  v.  Shields,  62  id.  247 ;  of  New  York. 

Brown  v.  Denver,  7  Colo.  305 ;  S.  C.  ■*  State  ex  reL  v.   Supervisors,  25 

5  Am.  &  Eug.  Corp.   C;is.   630 ;  State  Wis.  339 ;    State  ex  rel.  v.  Riordan, 

V.  Hitchcock,  1  Kan.  178.    See  Hess  24  id.  484 ;  Walsh  v.  Dousman,  28  id. 

T.  Pegg,  7  Nev.  23 ;  Clarke  v.  Irwui,  541. 
5  Nev.  124 ;  State  v.  Squires,  26  Iowa, 
340. 

10 


liG  KEQUTREMEKT    OF    GENEKAL    LAWS. 

laws  of  a  general  nature  are  required  to  have  a  uniform  opera- 
tion. The  questions  affecting  the  validity  of  such  laws  are 
judicial ;  the  courts  must  determine  what  are  laws  of  a  general 
nature  which  must  be  so  framed  as  to  operate  with  uniformity.^ 

The  enumerated  subjects  must  be  dealt  with  by  general 
laws ;  the  constitutional  provision  determines  conclusively  that 
they  can  be  so  dealt  with.  All  special  legislation  being  pro- 
hibited, no  other  than  general  laws  can  be  valid.  Under  the 
provision  prohibiting  special  or  local  laws  where  a  general 
law  exists  which  is  applicable,  the  vaUdity  of  a  special  or  local 
law  intended  to  operate  in  modification  of  an  existing  general 
law  will  be  determined  by  the  courts  as  obviously  a  judicial 
question,  for  it  depends  wholly  upon  judicial  elements  —  the 
meaning  of  the  constitutional  provision,  the  scope  and  effect  of 
the  general  law,  and  the  sense  and  proposed  effect  of  the  spe- 
cial or  local  act. 

§  119.  Independently  of  these  provisions  the  legislature  has 
power  to  pass  local  and  special  laws.  A  mere  want  of  sjto- 
metry  in  the  legislation  of  a  state,  or  the  mere  circumstance 
that  all  parts  of  a  state  are  not  subjected  to  the  same  regula- 
tions, or  that  statutes  are  not  made  to  embrace  all  the  subjects 
to  which  they  might  extend  if  the  law-maker  so  desired,  is  no 
objection.^  As  said  by  a  learned  author :  "  Laws  public  in 
their  objects  may,  unless  express  constitutional  provision  for- 
bids, be  either  general  or  local  in  their  application ;  they  may 
embrace  many  subjects  or  one,  and  they  may  extend  to  all 
citizens  or  be  confined  to  particular  classes,  as  minors,  married 
women,  or  traders,  or  the  like.  The  authority  that  legislates 
for  the  state  at  large  must  determine  whether  particular  rules 
shall  extend  to  the  whole  state  and  all  its  citizens,  or,  on  the 
other  hand,  to  a  subdivision  of  the  state,  or  to  a  single  class 
of  its  citizens  only."  ^ 

There  are  fundamental  principles  secured  by  all  the  consti- 
tutions, and  elementary  in  the  very  definition  of  the  "  law  of 

1  See  post,  §  120.  Corp'n.  34  Minn.  245 ;  Coiinty  of  Hen- 

2  Lin  Sing  v.  Washbnm,  20  Cal.  nepin  v.  Jones,  18  Minn.  199 ;  Bruce 
534 ;  State  v.  Duffy,  7  Nev.  342 ;  Cory    v.  County  of  Dodge,  20  id  388. 

r.  Carter,  48  Ind.  327 ;  Ward  v.  Flood,  3  Cooley's  Const  Lim.  488 ;  State  v. 
48  CaL  36 ;  State  v,  McCann,  21  Ohio  Piper,  17  Neb.  614 ;  Smith  v.  Dunn^ 
St   198 ;    Merritt  v.   Knife  Falls  B.     64  CaL  164. 


KKtiUIkKMKNT    OF    GKN'EKAL    LAWS.  l-iT 

the  land,"  which  impose  restrictions  upon  the  power  to  enact 
partial,  invidious  and  unequal  laws ; '  but  it  would  be  foreign  to 
my  present  purpose  to  enter  upon  that  subject. 

§  120.  General  laws,  or  laws  of  a  general  nature. —  The 

important  questions,  under  these  constitutional  provisions,  are : 
what  are  laws  of  a  general  nature  which  must  have  a  uniform 
operation  throughout  the  state?  And  what  are  general  laws 
as  distinguished  from  special  and  local  laws?  The  descriptive 
term  general  laws  has  been  in  use  for  a  long  time.  In  the 
common-law  classification  of  statutes  it  applies  to  and  includes 
all  public  acts;  those  of  which  the  courts  take  judicial  notice; 
all  except  private  acts.  This  classification  will  be  more  par- 
ticularly discussed  in  another  place.  It  is  obvious  that  this 
term  is  not  used  in  these  constitutional  provisions  in  this  sense. 
Some  cases,  however,  seem  to  have  proceeded  on  the  contrary 
assumption,-  but  I  thinli:  erroneously.  Public  statutes  may  be 
local  or  special,  and  incapable  of  uniform  operation  through- 
out the  state,  and  therefore  within  the  purpose  of  these  pro- 
visions. The  frequency  and  inconvenience  of  such  local  and 
special  legislation  in  public  acts  led  to  the  adoption  of  these 
provisions.  The  enumeration  of  subjects  as  to  which  local  or 
special  legislation  is  forbidden  is  chiefly  an  enumeration  of 
subjects  upon  which  the  prior  legislation  was  of  that  charac- 
ter— public  laws  —  of  which  courts  would  take  judicial  notice. 
Under  these  requirements  it  must  not  be  by  special  or  local 
but  by  general  laws ;  and  where  the  requirement  of  uniform 
operation  is  in  force  these  must  so  operate.  An  act  to  estab- 
lish a  municipal  court  in  a  particular  city  or  a  particular  mu- 
nicipal government  would  not  be  a  general  law,  but  it  would 

1  Lewis  V.  AVebb,  3  Me.  326 ;  Dur-  Memphis  v.  Fisher,  9  Baxt  239 ;  State 

ham  V.  Lewiston,  4    id.   140 ;    Hoi-  v.  Duffy,  7  Nev.  349 ;  Griffin  v.  Cun- 

(len  V.  James,  11  Mass.  396 ;  Bull  v.  ningham,  20  Gratt  31 ;  Dorsey  v.  Dor- 

Conroe,  13  Wis.   238-244 ;  Wally  v.  sey,  37  Md.  64 ;  S.  C.  11  Am.  R.  528 ; 

Kennedy,  2  Yerg.  554 ;   Vanzant  v.  Lawson  v.  Jeffries.  47  Miss.  686 ;  S.  C. 

Waddel,  id.  258;  State  Bank  V.Cooper,  12  Am.  R.  342;   Wilder  v.  Railway 

id  605 ;  Ragio  v.  State,  86  Tenn.  272 ;  Co.  70  Mich.  382 ;  Tnistees  v.  Bailey, 

Budd  V.  State,  3  Humpk  483 ;  Pope  10  Fla.  238 ;  Arnold  v.  Kelley,  5  W. 

V.  Phifer,  3  Heisk.  701 ;  Mayor  v.  Dear-  Va.  446 ;  Cooley,  Const  L.  487. 

mon,  2  Sneed,  121 ;  Daly  v.  State,  13  2  Hingle  v.  State,  24  Ind.  28 ;  State 

Lea,  228 ;  Burkholtz  v.  State,  16  id.  ex  rel.  Stoutmeyer  v.  Duffy,  7  Nev. 

71;  Woodard  v.  Brien,  14  id.  520;  350. 


l-kS  EEQUIEEMENT    OF    GENERAL    LAWS. 

be  a  public  law.^  That  which  concerns  the  administration  of 
pubhc  justice,  Hke  legislation  relating  to  a  court,  though  it  be 
of  limited  jurisdiction  and  its  sittings  confined  to  a  specified 
locaUty,  is  a  public  law,  but  local ;  it  is  a  law  which  affects  the 
public  generally.^  It  is  not  necessary,  in  order  to  give  a  statute 
the  attributes  of  a  public  law,  that  it  shall  be  equally  applica- 
ble to  all  parts  of  the  state,''  nor  that  it  extend  in  its  operation 
to  all  of  the  inhabitants. 

In  some  constitutions  it  is  provided  that  general  laws  shaU 
not  be  in  force  until  published.  Such  a  provision  is  contained 
in  the  constitution  of  Wisconsin.  It  was  there  held  that  an 
act  establishing  a  municipal  court  in  the  city  of  Milwaukee 
was  a  general  law,  and  could  not  have  effect  until  after  publi- 
cation.* The  object  of  that  provision  was  notice  to  those  who 
must  obey ;  hence  it  referred  comprehensively  to  public  laws, 
not  merely  to  such  as  were  general  in  distinction  from  local 
or  special  laws.* 

§  121.  General  laws,  therefore,  in  this  constitutional  antith- 
esis, are  public  laws,  general  in  the  common-law  sense ;  but  a 
more  limited  class.  They  are  not  general  because  they  are 
public  acts,  though  they  are  such ;  but  general  because  their 
subject-matter  is  of  common  interest  to  the  whole  state,  and 
not  local ;  because  the  provisions  embrace  the  whole  subject, 
or  a  whole  class  of  it.  JSTot  being  confined  to  a  part  they  are 
not  partial  nor  special.  The  state  contains  a  great  variety  of 
subjects  of  legislation,  each  requiring  provisions  peculiar  to 
itself.     Generic  subjects  may  be  divided  and  subdivided  into 

1  State  ex  reL  Webster  v.  Balti-  Healey  v.  Dudley,  5  Lans.  115 ;  Will- 
more  County,  29  Md.  518;  County  iams  v.  People,  24  N.  Y.  405;  Con- 
Commissioners  V.  Commissioners,  51  ner  v.  Mayor,  etc.  5  id.  285 ;  Graves 
id.  465 ;  People  v.  Hill,  8  N.  Y.  449 ;  v.  McWiUiams,  1  Pin.  491 ;  People  v. 
City  Council  of  Montgomery  v.  McCann,  16  N.  Y.  58 ;  Kerrigan  v. 
Wright,  72  Ala.  411 ;  S.  C.  5  Am.  &  Force,  68  N.  Y.  381 ;  Falk,  Ex  parte,  42 
Eng.  Corp.  Cas.   642 ;  Cass  v.  Dillon,  Oliio  St.  638. 

2  Oliio  St.  607,  617;  City  of  Coving-  3  state  ex  reL  Webster  v.  Baltimore 

ton  V.  Voskotter,  80  Ky.  219 ;    S.  C.  County,  29  Md.  516 ;  State  v.  Wilcox, 

S  Am.  &  Eng.Corp.  Cas.  578 ;  Luling  v.  45  Mo.  458. 

Racine,  1  Biss.  C.  C.  316.  i  In  re  Boyle,  9  Wis.  264.    See  Lu- 

2  People  V.  Davis,  61  Barb.  456;  In  ling  v.  Racine,  1  Biss.  C.  C.  316. 

re  DeVaucene,    31    How.    Pr.  337;        5  Clark  v.  JanesviUe,  10  Wis.   136; 
State  V.   Dalon,  35  La.  Ann.   1141 ;    LuMng  v.  Racine,  1  Biss.  C.  C.  316. 
Phillips  V.  Mayor,   etc.   1   Hilt  483; 


REQUIREMENT    OF    GENERAL    LAWS. 


149 


as  many  classes  as  require  this  peculiar  legislation.  Thus  laws 
relating  to  the  people,  for  certain  purposes,  extend  to  all  alike, 
as  for  protection  of  person  and  property ;  for  other  purposes 
they  are  divided  into  classes,  as  voters,  sane  and  insane  per- 
sons, minors,  husbands  and  wives,  parents  and  children,  etc. 
Property  is  subject  to  division  into  classes.  Kearly  every 
matter  of  public  concern  is  divisible,  and  division  is  necessary 
to  methodical  legislation.  A  statute  relating  to  persons  or 
things  as  a  class  is  a  general  law ;  one  relating  to  particular 
persons  or  things  of  a  class  is  special.^ 


iln  Wlieeler  v.  Philadelphia,  77 
Pa.  St.  338,  the  court  say  that  the 
power  of  classifying  subjects  for  leg- 
islation "  existed  at  the  time  of  the 
adoption  of  the  constitution ;  it  had 
been  exercised  by  the  legislature  from 
the  foimdation  of  the  government; 
it  was  incident  to  legislation,  and  its 
exercise  was  necessary  to  the  promo- 
tion of  the  public  welfare.  The  true 
question  is  not  whether  classification 
is  authorized  by  the  terms  of  the  con- 
stitution, but  whether  it  is  expressly 
proliibited.  In  no  part  of  that  instru- 
ment can  such  prohibition  be  found. 
For  the  pvu-pose  of  taxation  real  es- 
tate may  be  classified.  Thus,  timber 
lands,  arable  lands,  mineral  lands, 
m'ban  and  i-ural,  may  be  divided  into 
distinct  classes,  and  subjected  to  dif- 
ferent rates.  In  like  manner  other 
subjects,  trades,  occupations  and  pro- 
fessions may  be  classified.  And  not 
only  things  bvit  persons  may  be  so 
divided  The  genus  homo  is  a  sub- 
ject \vitliin  th(^  meaning  of  the  con- 
stitution. WUl  it  be  contended  that 
as  to  this  there  can  be  no  classifica- 
tion? No  laws  affecting  the  personal 
and  property  rights  of  minors  as  dis- 
tinguished from  adults?  Or  of  males 
as  distinguished  from  females?  Or, 
in  the  case  of  the  latter,  no  distinc- 
tion between  a  feme  covert  and  a 
single  woman?  "What  becomes  of  all 
our  legislation  in  regard  to  the  rights 


of  married  women  if  there  can  be  no 
classification?  And  where  is  the 
power  to  provide  any  future  safe- 
guards for  their  separate  estate? 
These  illusti'ations  might  be  multi- 
pHed  indefinitely  were  it  necessary. 
But  it  is  contended  that  even  if  the 
right  to  classify  exists,  the  exercise 
of  it  by  the  legislature,  in  tins  in- 
stance, is  in  violation  of  the  consti- 
tution, for  the  reason  that  tliere  is 
but  one  city  in  the  state  with  a 
population  exceeding  three  himcb-ed 
thousand ;  that  to  form  a  class  con- 
taimng  but  one  city  is  in  point  of  fact 
legislating  for  that  one  city  to  the  ex- 
clusion of  aU  others,  and  constitutes 
the  local  and  special  legislation  pro- 
hibited by  the  constitiition.  This  ar- 
gument is  plausible,  but  unsoimd.  It 
is  is  ti'ue  the  only  city  in  the  state,  at 
the  present  time,  containing  a  popu- 
lation of  three  hundred  thousand,  is 
the  city  of  Philadelphia,  It  is  also 
ti'ue  that  the  city  of  Pittsburg  is  rap- 
idly approacliing  that  number,  if  it 
has  not  already  reached  it,  by  recent 
enlargements  of  its  territory. 

"  Legislation  is  intended  not  only  to 
meet  the  wants  of  the  present,  but  to 
provide  for  the  future.  It  deals  not 
with  the  past,  but,  in  theory  at  least, 
anticipates  tiie  needs  of  a  state^ 
healthy  with  a  vigorous  develop- 
ment It  is  intended  to  be  perma- 
nent    At  no  distant  day  Pittsburg 


-150  KEQUIEEMENT    OF    GENERAL    LAWS. 

l,a\rs  of  a  general  nature  are  required  to  be  made  in  such 
iform  that  they  will  have  a  uniform  operation.  They  must  be 
so  framed  and  so  operate  on  account  of  being  of  that  general 
nature.  In  Cass  v.  Dillon,^  Thurman,  J.,  said :  "  The  origin 
of  this  section  is  perfectly  well  known.  The  legislature  had 
often  made  it  a  crime  to  do  in  one  county,  or  even  township, 
what  it  was  perfectly  lawful  to  do  elsewhere ;  and  had  pro- 
vided that  acts,  even  for  the  punishment  of  offenses,  should  be 
in  force  or  not  in  certain  localities,  as  the  electors  thereof  re- 
spectively might  decide.  It  was  to  remedy  this  evil  and  pre- 
vent its  recurrence  that  this  section  was  framed." 

In  KeUey  v.  State  ^  the  court  say :  "  Without  undertaking  to 
discriminate  nicely  or  define  with  precision  it  may  be  said 
that  the  character  of  a  law,  as  general  or  local,  depends  on  the 
character  of  its  subject-matter.  If  that  be  of  a  general  nature, 
existing  throughout  the  state,  in  every  county,  a  subject-mat- 
ter in  which  all  the  citizens  have  a  common  interest  —  if  it  be 
a  court  organized  under  the  constitution  and  laws  within  and 
for  every  county  of  the  state,  and  possessing  a  legitimate  ju- 
risdiction over  every  citizen, —  then  the  laws  which  relate  to 
and  regulate  it  are  laws  of  a  general  nature,  and  by  virtue  of 
the  prohibition  referred  to  must  have  a  uniform  operation 
throuo^hout  the  state."  It  is  to  be  inferred  from  this  that  a 
law  of  a  general  nature  requires  a  subject-matter  of  this  ex- 
tensive and  all-pervading  sort ;  and  that  all  laws  relating  to 
and  regulating  it  are  of  the  same  character  —  of  a  general 
nature.  If  limited  in  terms,  so  as  not  to  extend  to  the  whole 
state ;  that  is,  if  the  court  referred  to  be  established  in  only  a 

will  probably  become  a  city  of  the  word  was  not  used  to  designate  num- 

first  class ;  and  Scranton,  or  others  of  bers,  but  a  rank  or  order  of  persons 

the  rapidly  growing  interior  towns,  or  tilings ;  in  society  it  is  used  to  in- 

wiU  take  the  place  of  the  city  of  dicate    equality,    or   persons   distin- 

Pittsburg   as  a  city  of  the    second  guished  by  common  characteristics, 

class.     In  the  meantime,  is  the  classi-  as  the  ti'ading  classes,  the  laboring 

fication  as  to  citit's  of  the  first  class  classes ;  in.  science,  it  is  a  division  or 

bad  because  PliUadelphia  is  the  only  arrangement  containing  the  subordi- 

one  of  the  class?    We    think   not.  nate  divisions  of  order,  genus  and 

Classification  does  not  depend  upon  species."    See  People  v.  Henshaw,  76 

the  numbers.    The  first  man,  Adam,  CaL436;  Pritchett  v.  Stanislaus  Co. 

was  as  distinctly  a  class,  when  the  73  id.  310. 

breath  of  life  was  breathed  uito  him,  i  2  Oliio  St  607,  617. 

as  at  any  subsequent   period-    The  2  6  Ohio  St.  269. 


KEQUIEEMENT   OF    GENERAL    LAWS.  151 

portion  of  the  state,  not  in  every  county,  it  does  not  have  the 
uniform  operation  required.  In  the  subsequent  case  of  McGill 
V.  State,'  the  subject  received  thorough  reconsideration.  The 
question  was  on  the  vahdity  of  a  law  relating  to  the  selection 
of  trial  jurors  in  that  court — whether  the  power  to  make  such 
selection  must  be  conferred  on  the  same  class  of  men  or  offi- 
cers in  every  county.  To  the  contention  that  such  uniformity 
was  required,  the  court  said:  "Tliis  position  derives  some 
support  from  what  was  said  in  Kelley  v.  State.  But  subse- 
quent decisions  of  this  court,  and  in  which  the  learned  judge 
delivering  the  opinion  in  that  case  concurred,  show  that  the 
proposition  that  a  law  relating  to  or  concerning  a  general 
subject-matter  is  a  law  of  a  general  nature  is  not  to  be  taken 
in  an  unqualified  sense  to  be  true.  That  a  law  of  a  general 
nature  must  concern  a  subject-matter  existing  and  capable  of 
uniform  operation  throughout  the  state  cannot  be  denied ;  for 
if  the  law  from  the  nature  of  its  subject-matter  is  not  suscejv 
tible  of  an  operation  throughout  the  state,  it  cannot,  within  the 
meaning  of  the  constitution,  be  a  law  of  a  general  nature. 
But  it  by  no  means  follows  that  all  laAvs  pertaining  to  a  gen- 
eral subject-matter,  and  susceptible  of  a  uniform  operation 
throughout  the  state,  are  laws  of  a  general  nature  in  the  con- 
stitutional sense  of  that  term."  Such  differences  of  details 
were  held  not  to  affect  the  constitutionahty  of  the  law.  The 
requu-ement  was  intended  by  such  uniformity  of  operation  to 
prevent  the  granting  to  any  citizen  or  class  of  citizens  of  priv- 
ileges or  immunities  which  upon  the  same  terms  shall  not 
belong  to  all  citizens.  This  language  is  associated  with  the 
provision  in  question  in  the  Iowa  constitution,^  and  as  quali- 
fied by  it  was  adopted  in  other  states.^ 

In  California  the  provision  was  adopted  from  the  constitu- 
tion of  Iowa.  In  Smith  v.  Judge,*  Baldwin,  J.,  said:  "The 
language  must  be  carefully  noted.  It  is  not  that  laws  shall 
be  universal  or  general  in  their  apphcation  to  the  same  sub- 
ject, nor  is  it  even  that  aU  laws  of  a  general  nature  shaU  be 
universal  or  general  in  their  application  to  such  subjects ;  but  the 
expression  is  that  these  laws  shall  be  uniform  in  their  opera- 

1 34  Ohio  St  239.  '  McGill  v.  State,  supra. 

2Sec6,  artL  *17CaL554. 


152  EEQUIKEMEXT    OF    GENERAL    LAWS. 

tion ;  that  is,  that  such  laws  shall  bear  equally  in  their  burdens 
and  benefits  upon  persons  standing  in  the  same  category,'^ 
The  same  court  in  a  later  case  held  that  the  provision  means 
that  every  law  shall  have  a  uniform  operation  upon  the  citizens 
or  persons  or  things  of  any  class  upon  whom  or  which  it  pur- 
ports to  take  effect,  and  that  it  shall  not  grant  to  any  citizen 
or  class  of  citizens  privileges  w^hich,  upon  the  same  terms,  shall 
not  equally  belong  to  all  citizens.^  In  a  still  later  case  ^  that 
court  said :  "  The  constitution  has  not  undertaken  to  declare 
that  aU  laws  shall  have  a  uniform  operation.  Uniformity  in 
that  respect  is  made  requisite  only  in  case  the  law  itself  be  one 
of  a  general  nature.  .  .  .  The  nature  of  a  given  statute,  as 
being  general  or  special,  must  depend  in  a  measure  upon  the 
legislative  purpose  discernable  in  its  enactment.  We  must 
not  say  that  a  statute,  plainly  special  in  its  scope,  must  either 
have  a  uniform  operation  or  not  operate  at  all,  for  this  were 
to  add  another  to  the  limitations  which  the  constitution  has 
imposed  upon  the  legislative  power,  and  to  hold  in  effect  that 
no  special  act  could  be  passed  at  all,  at  least  if  '  uniform ' 
operation  means  universal  operation.^  .  .  .  JSTor  are  w^e  to 
say  that  a  special  statute  —  special  in  its  aims  and  in  the  ob- 
ject it  has  in  view  —  is  by  mere  construction  to  be  converted 
into  a  general  statute,  because  the  subject  with  w^hich  it  deals 
might  have  been  made  the  subject  of  a  general  law.  It  is 
obvious  that  every  law  upon  a  general  subject  is  not  ^j»e^'  se, 
nor  by  constitutional  intendment,  necessarily  of  a  general 
nature.  The  subject  may  be  general,  but  the  law  and  the  rule 
it  prescribes  may  be  special.  Fees  of  officers,  for  instance, 
constitute  a  gen-^ral  subject,  one  w^hich  pervades  the  length 
and  breadth  of  the  state,  and  extends  into  every  political  sub- 
division of  which  it  is  composed ;  yet  a  statute  may  prescribe 
what  these  fees  of  office  shall  be  in  a  particular  county.*  And 
may  declare  that  they  shall  differ  from  fees  established  for 
the  same  official  duties  performed  in  another  county.     Such  a 

1  French  v.  Teschemaker,  24  Cal.  1849  is  that  "  all  laws  of  a  general 
544 ;  Brooks  v.  Hyde,  37  Cal.  375.  nature  shall  have  a  uniform  opera- 

2  People  V.  C.  P.  R  E.  Co.  43  Cat  tion."     Art.  1,   sec.  11.     The  words 
432.  "  throughout  the  state  "  are  omitted. 

3  The  provision  requu-ing  uniform-  •»  State  ex  rel.  v.  Judges,  etc.  21  Ohio 
ity  in  the  California  constitution  of  St.  1. 


KEQIHREMENT    OF    GENERAL    LAWS. 


15a 


law  would  not  be  a  law  of  a  general  nature  involving  the  con- 
stitutional necessity  of  uniform  operation ;  but  it  would  be  a 
special  law  upon  a  general  subject."  ^ 

§  122.  It  is  thus  apparent  that  this  provision  alone  does  not 
prevent  special  legislation,  except  where,  upon  a  subject  of 
general  concern,  it  would  have  the  effect  to  make  unjust  dis- 
criminations between  people  or  places  in  the  same  condition 
and  circumstances ;  in  other  words,  have  the  effect  to  grant 
to  certain  persons  or  classes  privileges  or  immunities  which, 
upon  the  same  terms,  arc  not  made  available  to  all.^ 


1  Eyan  v.  Johnson,  5  Cal.  8G. 

2  In  McGill  V.  State,  34  Ohio  St.  246, 
the  court  thus  discussed  this  dis- 
tinction: "In  State  ex  rel.  v.  Tlie 
Judges,  etc.  21  Ohio  St.  1,  it  was 
held  that  an  act  hmiting  and  regulat- 
ing the  fees  of  the  county  officers  of 
Hamilton  county  was  not  a  law  of  a 
general  but  of  a  local  nature.  And 
in  Cass  v.  Dillon,  2  Ohio  St.  617,  it 
was  said  that  a  law  authorizing  and 
requking  the  commissioners  to  sub- 
scribe in  behalf  of  the  county  to  the 
stock  of  a  raih-oad  company  was  no 
more  of  a  general  nature  than  would 
be  an  act  to  authorize  the  construc- 
tion of  a  bridge,  or  the  erection  of  a 
poor-house;  and  yet  it  is  perfectly 
clear  that  an  act  regulating  the  fees 
of  county  officers  tlu'oughout  the  state 
pertains  to  a  general  subject-matter 
existing  in  every  comity,  and  in 
which  aU  citizens  have  an  intei'est, 
as  do  the  general  acts  authorizing 
county  commissioners  to  construct 
bridges,  erect  poor-houses  and  other 
necessary  public  buildings.  And  yet 
who  would  venture  to  question  the 
power  of  the  legislature  to  clothe  the 
commissioners  of  a  county,  or  the 
ti'ustees  of  a  township,  by  local  en- 
actment, with  authority  to  provide 
aU  public  buildings  or  structures  that 
the  local  wants  of  a  community 
might  require ;  or  who  will  contend 
that  the  power  of  the  legislatiu-e  is 


so  circumscribed  and  restricted  as  to 
prohibit  it  from  requii'ing  a  tax  to  be 
levied  or  a  com-t-house  to  be  erected 
in  one  county  without  requu-ing  the 
same  tiling  to  be  done  in  every 
county  in  the  state?  The  act  author- 
izing the  judges  of  the  court  of  com- 
mon pleas  to  fix  the  times  for  holding 
the  terms  of  com-t  in  their  respective 
districts  is  a  general  law,  the  subject- 
matter  of  which  concerns  all  the 
people  throughout  the  state.  Cannot 
the  legislatm-e  change  by  local  enact- 
ment the  term  of  a  court  so  fixed?  If 
it  may  do  so,  it  is  because  the  act 
authorizing  the  judges  to  fix  the  time 
for  holding  the  courts,  although  gen- 
eral in  its  terms,  and  relating  to  a 
sul'ject-matter  that  pervades  all  parts 
of  the  state,  is  not,  witliiu  the  mean- 
ing and  intendment  of  the  constitu- 
tion, a  law  of  a  general  nature.  Such 
laws  are  clearly  distinguishable  in 
their  nature  from  those  that  confer 
privileges  and  immunities  or  impose 
burdens  upon  a  citizen  or  class  of 
citizens  that  are  not  upon  the  same 
terms  and  conditions  conferred  and 
ihiposed  upon  all.  It  is  easy  to  com- 
prehend that  a  law  defining  burg- 
lary or  bigamy,  and  its  penalty, 
or  regulating  descent  and  disti'ibu- 
tion,  or  prescribing  a  rate  of  inter- 
est for  the  use  of  money,  and  others- 
of  a  similar  effect  and  operation 
are  laws   of  a   general  natm-e,   re- 


154:  r-^QUIEEMENT   OF    GENERAL    LAWS. 

In  sucli  cases  legislation  must  be  general ;  it  must  liave  a 
uniform  operation.  The  case  of  Kelley  v.  State  is  an  apt 
illustration.^  An  act  declaring  what  shall  constitute  a  legal 
and  sufficient  fence  and  requiring  all  fields  and  inclosures  to  be 
inclosed  therewith  was  held  to  be  a  law  of  a  general  nature. 
It  did  not  extend  to  the  whole  state ;  it  was  not  framed  to 
liave  a  uniform  operation  throughout  the  state,  and  was  there- 
fore held  unconstitutional.^  An  act  prohibiting  sheep  from 
running  at  large  in  all  the  counties  of  the  state  except  one  was 
held  Hable  to  the  same  objection.^  So  of  an  act  relating  to 
libel  and  confined  to  publishers  of  newspapers.*  Tax  laws 
must  provide  a  uniform  rule.^ 

§  123.  Criminal  laws  must  be  general  and  have  a  uniform 
operation.^ 

In  Ex  parte  Falk  "^  it  was  held  that  a  statute  providing  pun- 
ishment for  an  act  which  is  malum,  in  se  wherever  committed, 
being  a  law  of  a  general  nature,  cannot  be  made  local  on  the 
ground  that  the  inhibited  act  is  a  greater  evil  in  a  large  city 
than  in  other  parts  of  the  state.  The  court,  by  Okey,  J.,  say : 
^'  The  act  inhibited  .  .  .  [having  burglars'  tools  in  his  pos- 
session] is  not  merely  immoral  but  plainly  vicious ;  it  is  one  of 
very  serious  and  dangerous  character ;  it  is  not  merely  m^alnm 

quii-ing  uniform  operation  through-  *  Allen  v.  Pioneer  Press,  40  Minn, 

out  the  state.    To  discriniinate  be-  117;  S.  C.  41  N.  W.  Rep.  936.    See 

tween  locaUties  or    citizens    in  the  Cobb  v.  Bord,  40  Mnn.  479. 

enactment  of  laws  of  such  nature  ^  state  v.  Cumberland  &  Perm.  R. 

would  be  to  grant  privileges  or  im-  R.  Co.  40  Md.  22 ;  State  v.  Sterling, 

pose  burdens  of  a  character  which  it  20  Md.  502 ;  Tyson  v.  State,  28  id.  587 ; 

was  the  clear  purpose  of  the  consti-  State  Board  of  Assessors  v.  Centi-al 

tution  to  provide  agamst.    But  that  R.  R.  Co.  48  N.  J.  L.  146 ;  Hammer 

a  law  may  be  general  and  concern  v.    State,    44    N.  J.    L.    667 ;    State 

matters  pm-ely  local  or  special  in  then-  v.  California  Miru  Co.  15  Nev.  234; 

natm-e,  or  may  be  local  or  special  and  Bright  v.  ]McCullough,  Treasm-er,  27 

relate  to  matter  that  may  be  made  Ind.    223.     See  Central  Iowa  R.   R 

the  subject  of  a  general  law,  not  only  Co.  v.  Board  of  Supervisors,  22  Am. 

rests  upon  some  reason  but  is  weU  &  Eng.  R.  R.  Cas.  223 ;  S.  C.  67  Iowa, 

supported  by  authority."  199 ;  People  ex  reL  v.  Wallace,  70  IlL 

1  6  Ohio  St.  269.  630. 

2  Darhng  v.  Rodgers,  7  Kan.  592 ;  « Ex  parte  Westerfield,  55  CaL  550  • 
Trost  V.  Cheny,  122  Pa.  St.  417.  Ex  parte  Koser,  60  id.  187,  191. 

3  Robinson  v.  Peny,  17  Kan.  248;  7  43  Ohio  St.  638. 
Utsey  V.  Hiott,  30  S.  C.  360 ;  9  S.  E. 

Hep.  338. 


KEtiLlUKME.NT    (H-'    GENKKAL    LAWtJ.  loO 

prohihitum  but  malum  in  sej  and  it  is  a  wrong  to  society  — 
not  merely  to  Cincinnati ;  not  merely  in  cities,  but  in  every 
county,  in  every  township,  in  fact  in  every  part  of  the  state ; 
and  no  reason  can  be  given  why  it  might  not  properly  be  made 
punishable  by  statute  throughout  the  whole  state  as  a  criminal 
offense.  Perhaps  it  is  true  that  such  acts  may  be  a  greater 
evil  in  large  cities ;  possibly  a  greater  evil  in  Cincinnati  than 
in  any  other  part  of  the  state.  But  the  same  thing  may  be 
truthfully  said  with  respect  to  many,  perhaps  a  majority,  of 
criminal  offenses.  Take  the  crime  of  arson.  It  is  a  grievous 
evil  everywhere,  and  under  some  circumstances  a  most  atro- 
cious crime.  It  is  an  evil  alike  in  town  and  country,  but  a  far 
greater  evil  in  a  large  compact  city  like  Cincinnati  than  in  a 
small  village  or  hamlet  or  in  a  sparse  rural  district.  But  does 
this  reason,  or  any  other  with  which  it  may  be  supplemented, 
afford  any  ground,  in  view  of  our  constitution,  for  punishing 
under  local  law?  So,  a  person  having  possession  of  instru- 
ments for  counterfeiting,  or  custody  of  a  large  quantity  of 
counterfeit  money,  may  be  in  a  better  position  to  carry  on  a 
nefarious  business  successfully,  and  therefore  more  likely  to 
occasion  harm  in  a  crowded  city  than  in  the  rural  portions  of 
the  state ;  but  a  general  law  upon  the  subject,  applicable  to  the 
whole  state,  has  effected  aU  that  can  be  done  by  legislation  to 
remedy  the  evil." ' 

1  Tliis  opinion  is  instructive  in  the  would  not  be  subject  to  any  constitu- 
remarks  which  follow :  "  To  the  end  tional  objection,  however  objection- 
that  tliese  statements  may  not  mis-  able  it  might  be  on  the  gi-ound  of 
lead,  it  is  proper  to  say  that  the  gen-  joropriety.  And  other  and  perhaps 
■eral  assembly  is  clothed  in  the  most  more  apt  illusti-ations  of  the  principle 
general  terms  with  legislative  power,  may  be  suggested.  On  the  other 
and  this,  unrcsti'ained  by  other  pro-  hand,  a  statute,  general  in  form,  pro- 
viai.ons,  would  authorize  the  legisla-  hibiting  the  sale  of  liquors  in  tlie  im- 
ture  to  pass  local  penal  statutes  of  mediate  vicinity  of  any  college  would 
everj  sort,  and  it  will  be  seen  that  perhaps  be  regarded  as  a  general  and 
there  is  no  iuliibition  agamst  the  therefore  valid  enactment,  in  force 
passage  of  penal  statutes  wliich  are  tlu-oughout  the  state,  although  eveiy 
local  and  even  special  in  character,  county  does  not  contain  a  coUege. 
Hence  it  may  be  that  a  statute  pun-  .  .  .  Attention  lias  been  called  to 
ishing  even  with  death  any  person  the  fact  that  in  State  v.  Brewster,  39 
who  should  break  and  enter  the  state  Ohio  St  653,  658,  it  was  held  tliat  the 
ti"easiu-y  in  Columbus,  Ohio,  with  in-  power  to  classify  municipal  corjxjra- 
tent  to  steal,  or  having  so  broken  and  tious  expressly  authorized  by  the  con- 
entered,  rob  the  treasurer  of  state,  stitution  is  addressed  in  a  large  degree 


156  KEQUIKEMENT    OF    GENERAL    LAWS. 

In  State  v.  Powers  '  the  court  held  that  laws  regulating  the 
organization  and  management  of  common  schools,  pursuant 
to  the  provisions  of  the  constitution  to  "  secure  a  thorough  and 
efficient  system  of  common  schools  throughout  the  state,"  ^ 
were  laws  of  a  general  nature;  that  if  the  constitution  de- 
clares a  given  subject  for  legislation  to  be  one  of  a  general 
nature,  all  laws  in  relation  thereto  must  have  a  uniform  oper- 
ation. The  court  expressed  some  diffidence  in  laying  down 
any  general  rule  for  determining  subjects  for  legislation  of  a 
general  nature,  but  suggested  as  such  marriage  and  divorce, 
and  the  descent  and  distribution  of  estates,  and  others  of  like 
common  and  general  interest  to  all  the  citizens  of  the  state. 
Two  propositions,  however,  were  said  to  be  settled :  1.  That 
the  general  form  of  a  statute  is  not  the  criterion  by  which  its 
general  nature  is  to  be  determined.  2.  That  whether  a  law 
be  of  a  general  nature  or  not  depends  upon  the  character  of 
its  subject-matter.^  It  was  admitted  that  on  subjects  concern- 
ing w^iich  uniformity  was  required,  judicious  classification  and 
discrimination  between  classes  were  admissible. 

§  124:.  The  uuiform  operation  of  laws  of  a  general  nat- 
ure.—  "Where  the  subject-matter  of  an  act  is  of  a  general 
nature,  and  a  law  deals  with  it  by  provisions  which  are  de- 
signed for  the  whole  state,  and  every  part  thereof,  such  act 
has  a  uniform  operation  throughout  the  state  though  the  con- 
to  the  conscience  and  judgment  of  city;  and  there  being  no  general 
the  legislature,  and  '  that  statutory  statute  punishing  the  act  of  having 
provisions  with  respect  to  any  such  possession  of  burglar's  tools,  it  is  true, 
class  are,  for  governmental  pui'poses,  perhaps,  that  the  substance  of  section 
general  legislation,'  and  not  in  con-  1924,  if  adopted  in  due  form  as  an 
fiict  with  the  constitution.  Tliis  we  ordinance  of  the  city  of  Cuiciiinati, 
held  to  be  a  proper  construction  of  under  authority  of  sections  1692  and 
ai-ticle  13,  section  6,  wliicli  is  in  no  2108,  would  be  entu-ely  valid.  Nor 
sense  in  conflict  with  article  2,  sec-  does  tliis  mihtate  against  anything  I 
tion  26.  And  in  this  connection  it  is  have  said ;  for  the  constitutional  pro- 
proper  to  say  that  in  Morgan  v.  Nolte,  vision  we  are  considering  would  not, 
37  Ohio  St.  23,  we  sustained  the  va-  under  such  circmnstances,  have  any 
liditj'  of  a  conviction  under  an  ordi-  appUcation,"  See  Williams  v.  People, 
nance  of  the  city  of  Cincinnati,  passed  24  N.  Y.  405 ;  Budd  v.  State,  8  Humph, 
by  vu'tue  of  Revised  Statutes,  sec-  483. 
tions  1692,  2108,  prescribing  punish-  i  38  Ohio  St.  54. 
ment  by  fine  and  imprisonment  ^  Art  6,  sec.  2. 
against  any  person  who,  being  a  "  Citing  KeUey  v.  State,  6  Ohio  St. 
known  thief,  should  be  found  in  that    272 ;  McGiU  v.  State,  34  id.  228. 


REQUIREMENT    OF    GENERAL    LAWS.  157 

dition  and  circumstances  of  the  state  may  be  such  as  not  to 
give  the  act  any  actual  or  practical  operation  in  every  part.' 
The  purpose  of  this  provision  requiring  a  uniform  operation 
of  general  laws  is  satisfied  when  a  statute  has  the  same  oper- 
ation in  all  parts  of  the  state  under  the  same  circumstances 
and  conditions.^  The  number  of  persons  upon  whom  the  law 
shall  have  any  direct  effect  may  be  very  few  by  reason  of 
the  subject  to  which  it  relates,  but  it  must  operate  equally 
and  uniformly  upon  aU  brought  within  the  relations  and  cir- 
cumstances for  which  it  ])rovides.' 

In  Indiana  local  laws  in  regard  to  fees  and  salaries  are  for- 
bidden, and  general  laws  required  on  that  and  other  enumer- 
ated subjects,  as  well  as  upon  all  subjects  on  which  general 
laws  could  be  made  applicable ;  and  these  were  requu-ed  to 
have  a  uniform  operation  throughout  the  state.  An  act  gave 
certain  officers  different  salaries  and  made  such  difference  de- 
pend on  the  question  of  population.  This  legislation  was  held 
to  be  neither  local  nor  special ;  it  operates  uniformly  and  ahke 
in  all  parts  of  the  state  under  like  facts.  It  gives  the  same 
increase  of  compensation  in  all  counties  where  there  is  the 
same  excess  of  population.'' 

In  Tennessee  there  are  constitutional  provisions  in  a  differ- 
ent form,  which,  by  judicial  construction,  forbid  partial  laws ; 
and,  as  part  of  the  law  of  the  land,  require  that  general  and 
public  laws  shall  be  equally  binding  upon  every  member  of 
the  community.^    This  requirement  is  satisfied  if  an  act  ex- 

1  LeaTenworth  Co.  v.  Miller,  7  Kan.  12  Heisk.  1 ;  McKinney  v.  INIempliis 

479 ;  In  re  De  Vaucene,  31  How.  Pr.  Overton   Hotel    Co.  12    Heisk.    104 ; 

337.  Budd  v.  State,  3  Humpk  483 ;  Shep- 

^  Groesch  v.  State,  42  Ind.  547 ;  pard  v.  Jolinson,  2  id.  296 ;  Pope  v. 
Heanley  v.  State,  74  Ind.  99 ;  Elder  v.  Phifer,  8  Heisk.  701 ;  Bro%vn  v.  Hay- 
State,  96  id.  162 ;  State  v.  Wilcox,  45  wood,  4  id.  357 ;  Bmkholtz  v.  State, 
Mo.  458.  16  Lea,  71 ;  Caruthcrs  v.  Andi-ews,  2 

3  People  ex  reL  v.  AVright,  70  111.  Cold.  378;  Woodard  v.  Brian,  14  Lea, 

398 ;  People  ex  reL  v.  Cooper,  83  id.  520 ;  Daly  v.  State,  13  id.  228 ;  McCal- 

585.  lie    V.    Chattanooga,    3    Head,    321 ; 

*  Hanlon  v.  Board  of  Commission-  Hazen  v.  Union  Bank,  1  Sneed,  115 ; 

ers,  53  Ind.  123 ;  State  v.  Reitz,  62  id.  Burton    v.    School    Commissionei-s, 

159 ;  Clem  v.  State,  33  Ind.  418.  Meigs,  589 ;  Taylor,  McBean  &  Co.  v. 

5  State  V.  Bm-uett,   6  Heisk.    186;  Chandler,  9  Heisk.  349 ;  Ragio  v.  State, 

Vanzant    v.  Waddel,   2    Yerg.  260 ;  86  Tenn.  272.     See  art  XI,  sec.  8,  of 

Memphis    v.    Fisher,    9    Baxt    239 ;  Const  Tenn- 
Paducah  &  j\I.  R.  R.  Co.  v.  Stovall, 


158  EEQUIKEMENT   OF    GENEKAL    LAWS. 

tends  to  and  embraces  all  persons  who  are  or  who  maj  come 
into  the  like  situation  and  circumstances.^ 

§  125.  The  number  of  persons  affected  by  a  law  does  not 
control  or  determine  the  question  of  its  validity ;  it  is  enough 
that  the  law  relates  to  a  subject  of  a  general  nature,  and  is 
general  and  uniform  in  its  operation  ujDon  every  person  who 
is  brought  within  the  relation  and  circumstances  provided  for 
by  it.-  An  act  provided  that  "  Every  railroad  company  shall 
be  liable  for  all  damages  sustained  by  any  person,  including 
employees  of  the  company,  in  consequence  of  any  neglect  of 
the  agents,  or  by  any  mismanagement  of  the  engineers  or 
other  employees  of  the  corporation,  to  any  person  sustaining 
such  damage."  It  was  objected  to  this  law  that  it  was  limited 
in  its  operation  to  railroad  companies,  and  subjected  them  to 
a  rule  or  liability  from  which  other  persons,  both  natural  and 
artificial,  were  exempt.  The  objection  was  held  untenable. 
The  court  said :  "  These  laws  are  general  and  uniform,  not  be- 
cause they  operate  upon  every  person  in  the  state,  for  they  do 
not,  but  because  every  person  w^ho  is  brought  into  the  relation 
and  circumstances  provided  for  is  affected  by  it.  They  are 
general  and  uniform  in  their  operation  upon  all  persons  in  the 
like  situation ;  and  the  fact  of  their  being  general  and  uniform 
is  not  affected  by  the  number  of  persons  within  the  scope  of 
their  operation."  ^  A  Missouri  statute  gave  an  exceptional 
measure  of  damages  against  railroad  companies  for  injury  to 
animals.  It  w^as  objected  that  the  act  was  partial  in  regard  to 
the  rule  of  damages,  because  if  any  private  person,  or  any  other 
person  than  a  railroad  corporation,  caused  a  like  damage,  the 
act  did  not  apply,  and  the  most  that  could  be  recovered  would 
be  the  value  of  the  animal.  The  objection  was  overruled.  The 
court  said :  "  This  right  of  action  is  given  to  aU  persons  who  may 
be  thus  injured.  It  is  given  as  well  to  any  association  of  peo- 
ple, and  to  railroad  corporations  whose  stock  may  be  injured 

1  Mayor,  etc.  v.  Dearmon,  2  Sneed,  Ellyson,  28  Iowa,  370 ;  Phillips  v. 
121 ;  Davis  v.  State,  3  Lea,  376 ;  State  Missouri  Pac.  R.  R.  Co.  86  Mo.  540 ; 
V.  Rauscher,  1  id.  96.  S.  C.  24  Am.  &  E.  R.  Cas.  368 ;  State  v. 

2  McAnnich  v.  Miss.  &  M.  R  R.  Co.  Wilcox,  45  Mo.  458 ;  State  v,  Spaude, 
20Iowa,338;  Thomasonv.  Ashworth,  37  Minn.  322;  Bannon  v.  State,  49 
73  CaL  73.  Ark.  167 ;  Dow  v.  Beidelman,  id.  325. 

3  Id. ;  United  States  Express  Co.  v. 


REQUIREMENT   OF    GENERAL    LAWS.  151> 

by  a  railroad."  ^  Another  act  put  all  owners  and  operators  of 
railroads,  whether  natural  persons,  companies  or  corporations, 
on  an  equal  footing,  by  malving  the  term  railroad  corporation 
to  include  them.  Though  directed  against  railroads  alone, 
while  no  other  common  carriers  are  brought  within  its  opera- 
tion, it  was  not  partial  for  that  reason.  And  the  court  thus 
remarks  upon  it :  "  Had  the  legislature  deemed  it  essential  to 
the  protection  of  human  life  and  private  property  they  Avould 
doubtless  have  extended  the  statute  to  carriers  by  coach  and 
w^ater;  but  as  the  class  of  property  and  human  life  protected 
by  this  provision  of  the  statute  is  not  exposed  to  like  perils 
incident  to  coach  and  w^ater  travel,  the  occasion  and  necessity 
for  so  extending  the  statute  did  not  exist.  Class  legislation  is 
not  necessarily  obnoxious  to  the  constitution.  It  is  a  settled 
construction  of  similar  constitutional  provisions  that  a  legisla- 
tive act  which  applies  to  and  embraces  all  persons  who  are  or 
who  may  come  into  like  situation  and  circumstances  is  not 
partial."  ^  And  a  like  conclusion  was  arrived  at  in  respect  to 
an  act  which  gave  a  justice  an  exceptional  jurisdiction  in  the 
particular  class  of  actions  just  mentioned.^ 

An  act  providing  in  substance  that  all  cities  and  towns  there- 
tofore incorporated  under  special  acts  and  charters,  and  which 
did  not  then  possess  the  powder  to  sell  personal  and  real  prop- 
erty for  taxes,  should  thereafter  have  and  possess  such  power, 
was  held  general  and  constitutional.  Though  it  did  not  apply 
to  all  cities  and  towns  in  the  state,  it  was  not  therefore  un- 
constitutional ;  other  cities  and  towns  possessed  that  power, 
and  the  act  in  question  brought  the  class  to  which  it  applied 
into  harmony  with  them.  As  the  act  applied  to  aU  cities  and 
towns  in  the  state  falling  within  the  class  specified,  not  to 
make  an  exceptional  rule,  but  to  remove  an  exception,  it  was 
not  local  or  special,  but  of  uniform  operation.* 


1  Humes  v.  Mo.  Pac  E'y  Co.  83  Mo.  3  phiUips  v.  Mo.  Pac.  R'y  Co.  86  Mo. 

221.  540. 

2Hxmies   v.  Missoviri,  etc.  R'y  Co.  *Haskel   v.  Burlington,  30    Iowa, 

82  Mo.  221 ;  Snyder  v.  Wai-ford,  11  232 ;  Iowa  Laud  Co.  v.  Soper,  39  id. 

Mo.   513 ;  Merritt  v.  Knife  Falls  B.  112 ;  Bumsted  v.  Govern,  47  N.  J.  L. 

Corp.  34  Minn.  245 ;  Centi-al  Trust  Co.  368 ;  aflarmed,  48  id.  612. 
V.  Sloan,  65  Iowa,  655 ;  Peoria,  etc 
E.  R.  Co.  V.  Duggau,  109  IlL  537. 


160  EEQUIEEMENT   OF    GENERAL    LAWS. 

§  1*26.  Eailroad  companies  have  for  some  purposes  consti- 
tuted a  class  for  general  legislation;  for  other  purposes  such 
companies  ma}^  be  divided  into  sub-classes,  and  legislation  in 
regard  to  one  of  such  classes  made  to  differ  from  that  applied 
to  another.  An  Iowa  act  divided  the  raikoads  of  the  state 
into  classes  according  to  business  in  regulating  rates  of  freight. 
It  Tvas  held  not  in  conflict  with  the  constitution,  requu'ing 
laws  of  a  general  nature  to  have  a  uniform  operation  through- 
out the  state.^  Waite,  C.  J.,  said :  "  It  operates  uniformly  on 
each  class,  and  this  is  all  the  constitution  requires.  ...  It 
is  very  clear  that  a  uniform  rate  of  charges  for  aU  railroad 
companies  m  the  state  might  operate  unjustly  upon  some.  It 
was  proper,  therefore,  to  provide  in  some  way  for  an  adapta- 
tion of  the  rates  to  the  circumstances  of  the  different  roads ; 
and  the  general  assembly,  in  the  exercise  of  its  legislative  dis- 
cretion, has  seen  fit  to  do  this  by  a  system  of  classification." 
The  requirement  of  general  laws,  and  that  they  have  a  uni- 
form operation,  is  an  imj)lied  prohibition  of  special  or  local 
laws ;  so  the  express  prohibition  of  local  or  special  laws  is  an 
implied  requirement  that  legislation  shall  be  general.  Indi- 
vidual cases  of  the  enumerated  class  cannot  be  provided  for. 
These  are  converse  forms  of  similar  constitutional  regulation. 
The  principal  discussion,  however,  has  occurred  on  the  varied 
inhibitions  of  special  or  local  enactment. 

§  127.  Special  aud  local  laws. —  Special  laws  are  those  made 
for  individual  cases,  or  for  less  than  a  class  requiring  laws  ap- 
propriate to  its  peculiar  condition  and  circumstances;  local 
laws  are  special  as  to  place.-  "When  prohibited  they  are  sev- 
erally objectionable  for  not  extending  to  the  whole  subject  to 
which  their  provisions  would  be  equally  applicable,  and  thus 
j^ermitting  a  diversity  of  laws  relating  to  the  same  subject. 
The  object  of  the  prohibition  of  special  or  local  laws  is  to  pre- 
vent this  diversity.  Each  subject  as  to  which  such  laws  are 
^irohibited  is  by  such  inliibition  designated  as  a  subject  of  only 
general  legislation  which  shall  have  a  uniform  operation.  Gen- 
erahty  in  scope  and  uniformity  of  operation  are  both  essential. 
A  law  which  embraces  a  whole  subject  would  stdl  be  special 
if  not  framed  to  have  a  uniform  operation. 

1 C,  B,  &  Q.  R  R.  Co.  V.  Iowa,  94        2  state  v.  Wilcox,  45  Mo.  45a 
U.  S.  155. 


KEQUIREMENT   OF    GENERAL   LAWS.  IGl 

What  is  an  integral  subject  of  legislation?  One  in  regard 
to  which  as  a  whole  a  law  is  general,  and  when  of  less  scope, 
local  or  special? 

There  has  been  much  discussion  of  this  subject  bv  the  courts 
of  New  Jersey.  It  has  there  received  a  very  definite  and  sat- 
isfactory solution.  The  principles  there  established  for  classi- 
fication of  subjects  for  legislation  have  been  generally  recog- 
nized ;  they  will  probably  harmonize  the  w^ell-considered  cases 
in  all  the  states  where  similar  constitutional  regulations  are 
in  force. 

In  Van  Riper  v.  Parsons  ^  the  supreme  court  declared  this 
principle :  that  a  general  law,  as  contradistinguished  from  one 
special  or  local,  is  a  law  which  embraces  a  class  of  subjects  or 
places,  and  does  not  omit  any  subject  or  place  naturally  belong- 
ing to  such  class.  The  second  time  that  case  passed  under 
judicial  examination  in  the  same  court  the  holding  was  thus 
expressed:  "A  law  framed  in  general  terms,  restricted  to  no 
locality,  and  operating  equally  upon  all  of  a  group  of  objects 
which,  having  regard  to  the  purpose  of  the  legislature,  are 
distinguished  by  characteristics  sufficiently  marked  and  impor- 
tant to  make  them  a  class  by  themselves,  is  not  a  special  or 
local  law  but  a  general  law,  without  regard  to  the  considera- 
tion that  within  this  state  there  happens  to  be  but  one  indi- 
vidual of  that  class,  or  one  place  where  it  produces  effects." 
The  statute  which  the  court  in  that  case  gave  effect  to  spent 
its  force  entirely  in  its  application  to  one  city. 

This  is  a  leading  case  in  that  state,  and  has  been  followed  by 
many  others  in  that  state  and  elsewhere  affirming  and  exem- 
phf  ving  it.2 

In  Rutgers  v.  New  Brunswick'  an  act  came  in  question 
which  had  the  effect  to  abolish  a  court  at  a  particular  city, 

1 40  N.  J.  L.  123.  lU.  680 ;  State  v.  Hoagland,  51  N.  J.  L. 

2  Board  of  Assessors  v.  Central  R  R.  62 ;    Bingham    v.  Camden,  40  N.  J. 

Co.  48  N.  J.  L.  146 ;  Sutterly  v.  Cam-  L.  150 ;  PeU  v.  Newark,  id.  71,  550 : 

den  Common  Pleas,  41  id.  495 ;  Field  Rutgers  v.  New  Bnmswick,  42  id.  51 ; 

V.  Silo,  44  id.  355 ;  Hines  v.  Freehold-  State  ex  reL  Richards  v.  Hammer, 

ers,  etc.  45  id.  504 ;  Bucklew  v.  R.  R;  id.  435 ;  Tiger  v.  Morris  Pleas,  id.  631 ; 

Co.  64  Iowa,  603 ;  Central  Trust  Co.  Worthlej'  v.  Steen,  43  id.  543 ;  Bum- 

V.  Sloan,  65  id.  655 ;  Darrow  v.  People,  stead  v.  Govern,  47  id.  368 ;  affirmed, 

8    Colo.    417 ;  Welker  v.  Potter,    18  48  id.  612. 
Ohio  St  85 ;   People  v.  Wallace,  70        » 42  N.  J.  Law,  51. 
11 


162  EEQUIREMENT  OF  GENERAL  LAWS. 

established  under  a  prior  general  law.  This  prior  law  pro- 
vided that  one  district  court  should  be  established  in  every 
city  in  the  state  of  fifteen  thousand  inhabitants.  Kew  Bruns- 
wick had  a  population  of  sixteen  thousand  six  hundred.  By  a 
supplement  to  this  act,  the  original  act  was  amended  by 
substituting  twenty  thousand  in  the  place  of  fifteen  thousand. 
This  amendment  was  held  not  to  be  a  local  or  special  law,  and 
that  it  abolished  the  district  court  in  that  city. 

An  act  which  for  the  purpose  of  fixing  the  compensation 
of  president  judges  classifies  them  into  separate  classes  by 
reference  to  population  of  the  counties  in  which  they  serve 
was  sustained  as  a  general  law.  The  duties  of  such  judges 
are  well  known  to  vary.  Those  located  in  populous  counties 
are  Ukely  to  be  called  on  to  perform  more  onerous  duties,  and 
their  time  will  probably  be  more  fully  occupied.  And  so 
such  a  distinction,  looking  at  the  matter  of  fixing  compensa- 
tion alone,  cannot  be  said  to  be  in  any  respect  illusive.^ 

A  law  may  be  general  in  its  terms,  and  apply  to  a  class  con- 
stituted by  having  characteristics  which  make  it  a  class,  and 
yet  be  an  illusory  classification  which  will  not  warrant  legisla- 
tion confined  to  it,  where  special  or  local  legislation  is  pro- 
hibited. The  grouping  must  be  founded  on  peculiarities 
requiring  legislation,  and  legislation  which  by  reason  of  the 
absence  of  such  peculiarities  is  not  necessary  or  applicable  out- 
side of  that  class.  In  other  words,  the  true  principle  requires 
-something  more  than  a  mere  designation  by  such  character- 
istics as  will  serve  to  classif}^ ;  for  the  characteristics  which 
will  thus  serve  as  a  basis  of  classification  must  be  of  such  a 
nature  as  to  mark  the  objects  so  designated  as  pecuHarly  re- 
quiring exclusive  legislation.  There  must  be  a  substantial 
distinction,  having  a  reference  to  the  subject-matter  of  the 
proposed  legislation  between  the  objects  or  places  embraced 
in  such  legislation  and  the  objects  or  places  excluded.  The 
marks  of  distinction  on  which  the  classification  is  founded 
must  be  such,  in  the  nature  of  things,  as  will  in  some  reasonable 
degree  at  least  account  for  and  justify  the  restriction  of  the 
legislation.^ 

J  Skinner  v.  Collector,  42  N,  J.  L.  sioners,  53  Ind.  123 ;  State  v,  Reitz, 
407 ;   Hanlon  v.  Board  of  Commis-    Auditor,  62  id.  159. 

i  Hammer  v.  State,  44  N.  J.  L.  667. 


REQDTREMENT   OF   GENERAL   LAWS.  163 

§  128.  Distinctions  which  do  not  arise  from  substantial  dif- 
ferences, so  marked  as  to  call  for  separate  legislation,  consti- 
tute no  ground  for  supporting  such  legislation  as  general.^ 
Where  local  or  special  legislation  to  regulate  the  internal  af- 
fairs of  municipalities  is  forbidden  it  must  be  general  and 
applicable  to  all  alike.  No  departure  from  this  rule  can  be 
justified,  except  where,  by  reason  of  the  existence  of  a  sub- 
stantial difference  between  municipalities,  a  general  law  would 
be  inappropriate  to  some  while  it  would  be  appropriate  to 
others.  In  such  case  the  municipalities  in  which  the  peculiar- 
ity exists  would  constitute  a  class,  and  the  legislation  would 
in  fact  be  general  because  it  would  appl}^  to  all  to  which  it 
would  be  appropriate.^  An  act  concerning  inns  and  taverns 
gave  the  court  of  common  pleas  "the  power  to  grant  such 
license,  but  the  act  was  restricted  to  cities,  towns  and  counties 
by  population  so  as  to  indicate  an  intention  that  it  should 
operate  in  but  three  small  towns  in  one  county.  It  was  objected 
that  it  was  local  and  special,  as  there  was  no  distinction  of 
those  towns  from  other  municipalities  which  would  in  any 
reasonable  degree  account  for  such  restriction.  The  court 
held  the  act  unconstitutional.^  The  court  said  the  constitu- 
tional provisions  against  special  or  local  laws  regulating  the 
internal  affairs  of  municipal  corporations  and  political  divis- 
ions of  the  state  w^as  to  secure  uniformity.  "  The  uniformity 
that  is  thus  sought  can  only  be  broken  by  classifications  of 
those  bodies  that  are  founded  on  substantial  differences,  such 
as  are  not  illusory  or  fraudulent  in  their  character."  * 

An  act  purporting  to  confer  on  cities  having  a  population  of 
twenty-five  thousand  a  power  of  issuing  bonds  to  fund  their 
floating  debt  was  held  special,  and  unconstitutional  on  account 
of  its  operation  being  restricted  to  cities  of  that  magnitude. 
There  was  deemed  to  be  no  connection  between  the  number  of 

1  Id. ;  Hudson  v.  Buck,  51   N.  J.  L.  Atlantic  City  Water-works  Co,  v.  Con- 

155 ;  Beaver  County  Indexes,  6  Pa,  suniers'  Wat  Co.  44  N.  J.  Eq.  427. 

County  Ct.  525 ;  Allen  v.  Pioneer  Press,  -  Id. ;  Van  Giesen  v.  Bloomfield,  47 

40  Minn.  117  ;  Preston  v.  Louisville,  84  N.  J.  L.  443. 

Ky.  118 ;   Cobb  v.  Bord,  40  ]\Iinn.  479 ;  » Zeigler  v.  Gaddis,  44  N.  J.  L.  363. 

State  V.  Standley,  76  Iowa,  215 ;  New-  *  Id. ;  Coutieri  v.  New   Brunswick, 

man    v.    Emporia,    41    Kan.    583 ;  44  N.  J.  L.  58 ;  Reading  v.  Savage, 

Nichols    V.    Walter,    37    Minn.  264 ;  124  Pa  St  328. 
Ruthorford  v.  Hamilton,  97  Mo.  543 ; 


164: 


KEQUIKEMENT   OF   GENERAL   LAWS. 


people  in  a  citj  and  the  right  to  fund  its  floating  debt.^  Where 
an  ac^  provided  for  a  change  in  the  management  of  the  internal 
affairs  of  towns  and  boroughs  which  were  sea-side  resorts  and 
then  governed  by  commissioners ;  -  the  court  held  it  came  within 
the  constitutional  interdict.  The  whole  statute  by  its  terms 
was  confined  to  sea-side  resorts  governed  by  boards  of  com- 
missioners. The  individuals  thus  grouped  into  a  class  by  legis- 
lative enactment  are  distinguished  from  other  municipalities 
by  these  two  features  only,  and  the  court  said,  "  consequently, 
no  legislation  touching  this  class  alone  is  constitutional,  un- 
less it  properly  relates  to  these  peculiarities.  We  cannot 
see  how  the  section  under  review  is  so  related.  That  the  power 
to  expend  the  road  tax  of  a  municipality  on  its  streets  should 
be  vested  in  its  own  governing  body,  rather  than  in  the  com- 
mittee of  the  township  of  which  its  territory  forms  a  part, 
is  a  proposition  which  seems  to  have  no  natural  connection 
with  the  facts  that  the  municipality  is  a  searside  resort,  and 
that  its  governing  body  is  styled  a  board  of  commissioners."  * 
§  129.  In  respect  to  the  enumerated  subjects  as  to  which 
legislation  is  required  to  be  general,  and  special  acts  prohibited, 
though  such  subjects  may  be  divided  into  classes  distinguished 


1  Anderson  v.  Trenton,  42  N.  J.  L. 
486.  A  classification  may  be  sustained 
where  the  differences  are  not  extreme, 
but  exist.  The  test  would  not  then  be 
judicial,  depending  on  whether  the 
law  was  special,  but  legislative, 
whether  wise  or  not.  Wlieeler  v. 
PhUadelphia,  77  Pa,  St.  338 ;  Kilgore 
V.  Magee,  85  id.  401 ;  Rutgers  v.  New 
Brunswick,  42  N,  J.  L.  51 ;  Skinner 
V.  Collector,  id.  407 ;  Fellows  v. 
Walker,  39  Fed.  Rep.  651. 

2  Ross  V.  Winsor,  48  N.  J.  L.  95. 

3  In  Closson  v.  Trent»n,  48  N.  J.  L. 
438,  the  act  in  question  was  to  estab- 
lish a  license  and  excise  department 
in  certain  cities  containing  more  than 
fifteen  thousand  inhabitants,  and  in 
which  the  granting  of  licenses  is  not 
ah-eady  vested  in  a  board  of  excise 
or  in  the  court  of  common  pleas.  It 
was    held   local  and   special      The 


court  said :  "  There  can  be  no  rea- 
son suggested  why  cities  with  more 
than  fifteen  thousand  inliabitants 
shoidd  have  a  system  of  granting 
hcenses  different  from  that  of  cities 
with  a  less  popidation.  In  respect 
to  the  matter  of  the  legislation  all 
cities  are  a  class,  and  an  attempt  t<> 
segregate  cities  into  distinct  classes 
for  tliis  piu-pose  by  a  standard  of  pop- 
ulation is  not  classification  but  an 
arbitrary  selection  of  one  or  more 
localities."  Hightstown  v.  Glenn,  47 
N.  J.  L.  105 ;  Gibbs  v.  Morgan,  39  N. 
J.  Eq.  126 ;  Tiger  v.  Morris  Common 
Pleas,  42  N.  J.  L.  631 ;  Ernst  v.  Mor 
gan,  39  N.  J.  Eq.  391 ;  Freeholders  v. 
Stevenson,  46  N.  J.  L.  173 ;  Alsbath 
V.  Philbrick,  50  N.  J.  L.  581 ;  Biny 
Hudson,  50  N.  J.  L.  82.  See  Dobbins 
V.  Northampton,  50  N.  J,  L.  496. 


REQUIREMENT   OF   GENERAL   LAWS.  165 

by  substantial  differences  for  the  purpose  of  legislation  appro- 
priate to  such  conditions  as  spring  from  these  differences,  there 
must  nevertheless  be  a  limit  to  such  division,  even  founded  on 
substantial  differences.  Within  certain  limits  subjects  may  be 
grouped  on  the  basis  of  such  differences  for  general  legislation ; 
beyond  those  limits  such  differences  "would  not  be  the  basis  of 
classification,  but  the  ground  of  segregation  by  which  each  in- 
dividual would  be  distinguished  for  special  enactments.^  The 
i:)rohibition  is  in  the  way  of  legislation  for  individual  cases.^ 
It  is  equally  fatal  to  such  legislation  though  it  be  general  in 
form.  If  a  statute  is  plainly  intended  for  a  particular  case, 
and  looks  to  no  broader  application  in  the  future,  it  is  special 
or  local,  and,  if  such  laws  are  prohibited  on  the  subject  to 
which  it  relates,  is  unconstitutional.^  The  lineaments  by  which 
such  cases  are  to  be  distinguished  are  usually  so  special  that  a 
law  confined  thereto  would  be  anticipated  to  have  no  effect 
from  the  antecedent  improbability  of  such  a  case  arising. 
When,  therefore,  it  is  found  to  fit  such  a  special  case,  it  is 
deemed  to  have  been  enacted  solely  for  it.^ 

An  act  came  in  question  which  gave  the  right  to  file  a  me- 

1  Devine  v.  Board  of  Commission-  68  N.  Y.  381.    See  Desmond  v.  Dunn, 

ers,  84  111  590 ;  I\Iontgomery  v.  Com-  55  Cal  242 ;  Earle  v.  Board  of  Educa- 

monwealth,  91  Pa.  St.  125;  Davis  v.-  tion,  id.  489. 

Clark,  106  Pa.  St  3TT;  Westertield,  2NevU    v.    Cliiford,  63    Wis.  435; 

Ex  parte,  55  CaL  550 ;  Koser,  Ex  parte,  AVilliams   v.   Bidleman,   7  Nev.   68 ; 

60  icL   177,   191 ;   Commonwealth  v.  IMontgomery  v.   Commonwealth,   91 

Patten,  88  Pa.  St.  258 ;  State  v.  Herr-  Pa.  St.  125 ;  Frye  v.  Parti'idge,  82  IlL 

manu,  75  IMo.  340 ;  Rutherford  v.  Hed-  267. 

dens,  82  id.  388 ;  Mason  v.  Spencer,  35  3  state  ex  rel.  v.  Mtchell,  31  Ohio 
Kan.  512 :  State  v.  Squires,  26  Iowa,  St.  592 ;  State  v.  Herrmann,  75  Mo. 
340;  Stange  v.  Dubuque,  62  Iowa,  340;  McCarthy  v.  Commonwealth, 
303;  State  ex  rel.  v.  Mitchell,  31  110  Pa.  St.  243;  S.  C.  14  Am.  & 
Ohio  St.  592 ;  Fiye  v.  Partridge,  82  Eng.  Corp.  Cas.  271 ;  Hammer  v. 
111.  267 ;  Pritz,  Ex  parte,  9  Iowa,  30 ;  State,  44  N.  J.  L.  667 ;  Devme  v.  Board 
Davis  V,  Woolnough,  id.  104 ;  State  of  Commissioners,  84  IlL  590 ;  Davis 
V.  Graham,  16  Neb.  74 ;  Philhps  v.  v.  Clark,  106  Pa,  St  377 ;  Common- 
Schumacher,  10  Hun,  405 ;  Healey  v,  wealth  v.  Patten,  88  Pa.  St  258 ;  Frye 
Dudley,  5  Laus.  115;  Hodges  v.  Bal-  v.  Partridge,  82  111.  267;  Hallock  v. 
tmiore  Pass.  Ry.  Co.  58  I\Id.  603 :  Cen-  Holliiig-shead,  49  N.  J.  L.  64 ;  Hudson 
tral  Iowa  R.  R.  Co.  v.  Board  of  Super-  Co.  Froeholdei-s  v.  Buck,  id.  228 ;  State 
visors,  67  Iowa,  199 ;  S.  C.  22  Am.  &  v.  Boyd,  19  Nev.  43. 
Eng.  R.  R  Cas.  223 ;  Kimball  v.  Rosen-  *  Id 
dale,  42  Wis.  407  ;  Kerrigan  v.  Force, 


166  KEQUIKEMENT   OF   GENERAL    LAWS, 

chanic's  lien  in  certain  cases,  but  contained  a  proviso  excluding 
from  its  operation  counties  having  a  population  of  over  two 
hundi'ed  thousand  inhabitants.  It  was  held  void  as  a  local 
and  special  law,  and  therefore  within  the  constitutional  inhi- 
bition of  such  laws  "  authorizing  the  creation,  extension  or 
impairing  of  liens."  ^  The  classification  of  counties  by  popu- 
lation and  the  passage  of  laws  applicable  to  a  certain  class 
only  have  within  reasonable  limits  and  for  some  purposes 
been  admitted  upon  the  assumption  that  counties  having  a 
smaU  population  may  ultimately  have  one  much  larger.  In 
the  case  under  consideration,  however,  two  counties  had,  at 
the  time  the  law  in  question  was  passed,  a  greater  population 
than  two  hundred  thousand.  As  it  could  not  be  assumed  that 
their  population  would  ever  faU  below  that  limit  they  were 
permanently  excluded  from  the  operation  of  the  act.  The 
court  say :  "  It  was  not  then  a  general  act.  It  did  apply  to  a 
great  number  of  counties ;  but  there  is  no  dividing  line  between 
a  local  and  a  general  statute.  It  must  be  either  one  or  the 
other.  If  it  apply  to  the  whole  state,  it  is  general.  If  to  a 
part,  it  is  local.  As  a  legal  principle  it  is  as  effectually  local 
when  it  apphes  to  sixty-five  counties  out  of  sixty-seven  as  if 
it  applied  to  one  county  only.  The  exclusion  of  a  single 
county  from  the  operation  of  the  act  makes  it  local."  ^  "Where 
an  act  provided  exceptionally  for  the  holding  of  courts  in  all 
counties  of  more  than  sixty  thousand  inhabitants,  adding  re- 
strictively,  "  in  which  there  shall  be  any  city  incorporated,  at 
the  time  of  the  passage  of  this  act,  with  a  population  exceed- 
ing three  thousand  inhabitants,  situate  at  a  distance  from  the 
county  seat  of  more  than  twenty-seven  miles  by  the  usually 
traveled  road,"  the  court  held  the  act  local ;  that  it  applied 
and  was  intended  to  apply  to  only  one  county.^ 

§  130.  Amendatory  and  curative  acts. —  Existing  general 
laws  required  to  have  a  uniform  operation  cannot  be  amended 
so  as  to  interrupt  their  uniform  operation.^     Amendments 

1  Davis  V.  Clark,  106  Pa  St.  377.  St.  258 ;  State  v,  Herrmann,  75  Mo. 

2  Montgomery  v.   Commonwealth,  340;  Weinman  v.  Wilkinsbui'g,  etc. 
91  Pa.  St.  125 ;  Devine  v.  Board  of  R'y  Co.  118  Pa,  St.  192. 
Commissioners,  84  ILL  590 ;  McCarthy  ^  State  ex  rel.  Peck  v.  Riordan,  24 
V.  Commonwealth,  110  Pa,  St  243.  Wis.  484;   State  ex  rel.   Keenan  v. 

3  Conimon wealth  v.  Patten,  88  Pa.  Supervisors,  25  id.  339 ;  State  ex  reL 


EEQUIREMENT   OF   GENERAL    LAWS. 


16| 


cannot  be  made  to  particular  charters  where  special  acts  of  in- 
corporation are  prohibited.'  Nor  can  special  curative  acts  be 
passed  to  give  effect  to  proceedings  defective  and  void,  because 
taken  in  the  absence  of  necessary  statutory  authority ,2  or  be- 
cause not  taken  in  pursuance  of  statutes  in  force.^ 

Walsh  V.  Dousman,  28  id.  541 ;  Zeigler  2  Independent  School  District  t. 
V.  Gaddis,  44  N.  J.  L.  363. 

1  Pritz,  Ex  parte,  9  Iowa,  31 ;  Davis 
V.  Woolnough,  i(L  104.  See  Brown  v. 
Denver,  7  Colo.  305 ;  Hodges  v.  Balti- 
xnore  Union  Pass.  E.  R  Co.  58  Md. 
•603. 


Biuhngton,  60  Iowa,  500 ;  Stange  y. 
Dubuque,  62  Iowa,  303.  See  State  v. 
Squires,  26  id.  340. 

3  IMason  v.  Spencer,  35  Kans.  513 ; 
City  of  Emporia  v.  Norton,  13  id  569. 


CHAPTER  VII. 

AMENDATORY  ACTS. 


131.  Constitutional  requirement  and 
its  purpose. 


its  purpose. 


ics  purpose. 

133.  Acts  expressly  amendatory. 

133.  Amendment  "to  read  as  fol- 
lows." 


134  Repeal  and  re-enactment 
135.  Amendments    by  implication 
not  within  constitutional  reg- 
ulation- 


§  131.  The  constitutional  requirement  and  its  purpose. — 

The  requirement  is  substantially  the  same  in  the  constitutions 
of  many  states  —  that  no  law  shall  be  revived  or  revised  or 
amended  by  reference  to  the  title  only ;  but  the  law  revived 
or  revised,  or  the  section  amended,  shall  be  re-enacted  or  in- 
serted at  length  in  the  new  act.  The  provision  is  mandatory.* 
This  requu-ement  was  intended  mainly  to  prevent  improvident 
legislation.-  By  a  prevalent  form  of  amendatory  legislation  the 
amendatory  act  itself  was  unintelligible ;  words  were  stricken 
out  or  inserted,  additions  or  substitutions  made  by  mere  ref- 
erence to  the  place  in  the  old  law  where  the  change  should  be 
introduced.  It  required  an  examination  of  the  former  act  and 
a  comparison  with  it  of  the  new  act  to  understand  the  change. 
Much  confusion  and  uncertainty  ensued  from  this  practice. 
After  repeated  amendments  in  this  manner  there  was  much 
difficulty  in  determining  the  state  of  the  law.  The  require- 
ment was  intended  to  remedy  this  evil  by  requiring  the  legis- 
lature changing  the  law  to  state  it  entire  in  its  amended  form : 
the  whole  act,  when  revived  or  revised,  or  a  whole  section 
amended.* 

1  Tuskaloosa   Bridge  Co.  v.  01m-    etc.  v.  Trigg,  46  Mo.  288,  290 ;  Peo- 


stead,  41  Ala.  9 ;  Walker  v.  Caldwell, 
4  La.  Ann.  297.  See  Lehman  v. 
McBride,  15  Ohio  St  573. 

2  Lehman  v.  McBride,  15  Ohio  St 
g73,  603. 

3Timm  v.  Harrison,  109  IlL  593; 
Sovereign  v.  State,  7  Neb.  409 ;  Mayor, 


pie  V.  Mahaney,  13  Mich.  484,  497; 
Davis  V.  State,  7  Md.  151,  159 ;  Col- 
weU  V.  Chamberhn,  43  N.  J.  L.  387; 
Draper  v.  Falley,  33  Ind.  465,  469; 
Blakemore  v.  Dolar^  50  Ind.  194, 
203. 


AMENDATORY   ACTS. 


IGO 


§  132.  Acts  expressly  amendatory. —  In  the  amendment  or 
revision  of  a  statute  two  things  are  required:  First,  the  title 
of  the  act  amended  or  revised  should  be  referred  to;  and 
secondly,  the  act  as  revised,  or  section  as  amended,  should  be 
set  forth  and  published  at  full  length.^  In  the  amendment  of 
a  section  the  title  of  the  act  in  force  containing  it  should  be 
referred  to.-  It  is  unavailing  to  refer  to  the  original  title  of 
the  act  containing  the  section  after  it  has  been  amended  and 
formulated  in  a  later  act.  The  title  of  the  later  law  should  be 
referred  to,  for  the  section  as  part  of  the  original  act,  by  the 
amendment,  has  ceased  to  exist  except  as  to  past  transactions ; 
it  is  superseded  by  the  section  as  amended.  An  amendment 
of  a  section  after  it  has  been  thus  displaced  is  void.* 

It  is  not  necessary  in  an  amendatory  statute  to  set  forth  the 
old  act  or  section,  but  only  to  re-enact  complete  the  amended 
section.  It  is  intended  that  the  law  in  force  after  the  amend- 
ment shall  be  formulated  and  stated  as  it  reads  entire,  and  not 
in  shreds.*    The  supreme  court  of  Louisiana  say : *  "It  was  in- 


1  Feibleman  v.  State  ex  rel.  98  Ind. 
521 ;  Tuskaloosa  Bridge  Co.  v.  Olm- 
stead,  41  Ala,  9 ;  Rogei-s  v.  State,  6 
Ind.  31 ;  Armsti'ong  v.  Berreman,  13 
id.  423 ;  Sovereign  v.  State,  7  Neb. 
409,  413 ;  Walker  v.  CaldweU,  4  La. 
Ann.  297 ;  Kohn  v.  Carrollton,  10  La, 
Ann.  719 ;  Jones  v.  Commissioner,  21 
Mich.  236 ;  State  v.  Algood,  87  Teun. 
163.  See  Comstock  v.  Judge,  etc.  39 
Mich.  195 ;  Earle  v.  Board  of  Educa- 
tion, 55  CaL  489,  492,  493. 

2Bm-nett  v.  Turner,  87  Tenn.   124. 

3  Id. ;  Draper  v.  FaUey,  33  Ind.  465 ; 
Town  of  Martinsville  v.  Frieze,  id. 
507 ;  Blakemore  v.  Dolan,  50  id.  194 ; 
Ford  V.  Booker,  53  id.  395 ;  Cowley  v. 
RushviUe,  60  id.  327 ;  Niblack  v.  Good- 
man, 67  id.  174 ;  Clare  v.  State,  68  id. 
17 ;  Brocaw  v.  Board,  etc.  73  id.  543 ; 
liawson  v.  De  Bolt,  78  id.  563 ;  Mc- 
Intyre  v.  Marine,  93  id.  193 ;  Robert- 
son V.  State,  12  Tex.  App.  541.  See 
Jones  v.  Commissioner.  21  Miclx.  236 ; 
Pond  V.  Maddox,  38  Cal.  572 ;  State  v. 
Brewster,  39  Ohio  St  653.  In  Bas- 
nett  V.  Jacksonville.  19  Fla.  664,  an 


act  pm-ported  to  amend  a  section 
which  had  been  amended,  and  en- 
acted that  it  should  "read  as  fol- 
lows ; "  held  to  operate  to  repeal  all 
of  the  section  amended  wliich  is  not 
embraced  in  the  amendment  A 
clerical  mistake  in  the  title  of  the 
amendatory  act  referring  to  the  date 
when  the  amended  act  was  approved 
wiU  not  vitiate  the  amendatory 
statute.  Saunders  v.  Provisional  Mu- 
nicipality, 24  Fla,  226.  See  Wall  v. 
Garrison,  11  Colo.  515. 

■*  Greencastle,  etc.  Co.  v.  State  ex 
rel.  28  IncL  382 ;  Draper  v.  Falley,  33 
id.  465 ;  Blakemore  v.  Dolan,  50  id. 
194 :  Rogers  v.  State,  6  id.  31 ;  People 
V.  McCallum,  1  Neb.  182 ;  Arnoult  v. 
New  Orleans,  11  La  Ann.  54;  Jones 
V.  Commissioner,  21  Mich.  236 ;  City  of 
Portland  v.  Stock,  2  Oregon,  69 ;  Col- 
well  V.  Chamberlin,  43  N.  J.  L.  387 ; 
Lehman  v.  :McBride,  15  Ohio  St  573, 
602;  Mayor  v.  Trigg,  46  Mo.  288; 
State  V.  Powder  Mfg.  Co.  50  N.  J.  h. 
75. 

5  Amoult  V.  New  Orleans,  supra. 


170  AMENDATORY   ACTS. 

tended  that  each  amendment,  and  each  revisal,  should  speak 
for  itself ;  should  stand  independent  and  apart  from  the  act 
revised  or  the  section  amended.  It  was  therefore  provided 
that,  in  such  cases,  if  the  object  was  to  revise  an  act,  it  should 
be  re-enacted  throughout ;  and  if  the  object  was  to  amend  an 
act,  then  the  section  amended  should  be  re-enacted  and  jpiib- 
lished.''^ 

If  the  section  is  subdivided  into  clauses  or  paragraphs,  and 
an  amendment  is  made  affecting  one  only  of  the  clauses  or 
paragraphs,  the  entire  section  must  nevertheless  be  included 
in  the  amendatory  statute ;  it  must  be  reconstructed  entire  as 
it  is  intended  in  the  future  to  operate.^  A  recital  of  the  sec- 
tion amended  as  it  stood  prior  to  the  amendment  will  not 
vitiate  the  amendatory  statute ;  such  recital  will  be  treated  as 
surplusag'e.^  If  incorrectly  recited  it  will  not  affect  the  valid- 
ity of  the  amendatory  act.*  It  is  not  required  that  the  amend- 
atory act  state  that  certain  words  of  a  specific  section  are 
stricken  out  and  others  inserted,  and  then  set  out  in  full  the 
section  as  amended ;  it  is  sufficient  if  the  section  as  amended 
be  set  out  in  f  uU.^  The  legislature  may,  by  amendment,  sub- 
stitute any  provision  they  please  for  any  other  provision, 
whether  cognate  or  not,  if  the  new  section  is  not  foreign  to 
the  subject  indicated  by  the  title  of  the  law  in  which  it  is  in- 
serted,^ 

§  133.  Amended  so  as  to  read  as  follows. —  The  constitu- 
tional provision  requiring  amendments  to  be  made  by  setting 
out  the  whole  section  as  amended  was  not  intended  to  make 
any  different  rule  as  to  the  effect  of  such  amendments.  So  far 
as  the  section  is  changed  it  must  receive  a  new  operation,  but 
so  far  as  it  is  not  changed  it  would  be  dano-erous  to  hold  that 
the  mere  nominal  re-enactment  should  have  the  effect  of  dis- 
turbing the  whole  body  of  statutes  in  jpari  materia  which  had 
been  passed  since  the  first  enactment.  There  must  be  some- 
thing in  the  nature  of  the  new  legislation  to  show  such  an  in- 
tent with  reasonable  clearness  before  an  implied  repeal  can  be 

1  Town  of  Maiiinsville  v.  Frieze,  33       <  Morrison  v.  St  Loiiis,  etc.  R  K, 
Ind.  507.  Co.  96  Mo.  603. 

2  Draper  v.  Falley,  33  Ind.  465.  5  Underwood  v.  McDuffee,  15  IVIich. 
«  People  V.  McCallum,  1  Neb.  182 ;    361,  367 ;  Gibson  v.  State,  16  Fla  291. 

School  Directors  v.  School  Directors, 
73  HL  249. 


AMENDATORY    ACTS. 


171 


recognized.'  The  amendment  operates  to  repeal  all  of  the  sec- 
tion amended  not  embraced  in  the  amended  form.-  The  por- 
tions of  the  amended  sections  which  are  merely  copied  without 
change  are  not  to  be  considered  as  repealed  and  again  enacted, 
but  to  have  been  the  law  all  along ;  and  the  new  parts,  or  the 
changed  portions,  are  not  to  be  taken  to  have  been  the  law  at 
any  time  prior  to  the  passage  of  the  amended  act.  The  change 
takes  effect  prospectively  according  to  the  general  rule.^  But 
all  the  provisions  of  the  prior  laAV  amended  which  continue  in 
force  after  the  passage  of  the  amendatory  act  derive  their 
force  thereafter  not  from  the  original  but  the  amendatory  act. 
A  repeal  of  that  act  would  not  revive  the  provisions  as  origi- 
nally enacted.*  On  the  contrar\',  a  repeal  of  the  amendatory 
act  would  be  a  repeal  of  the  provisions  therein  continued  in 
force  from  the  original  act.* 

1  Gordon  v.  People,  44  IMich.  485 ; 
Ely  V.  Holton,  15  N.  Y.  595 ;  Moore 
V.  Mausert,  49  id.  332 ;  People  v.  Su- 
pervisors, C7  N.  y.  109 ;  Burwell  t. 
Tullis,  12  IMiniL  572;  Alexander  v. 
State,  9  Ind.  337 ;  Longlois  v.  Long- 
lois,  48  id.  60-64;  Benton  v.  Wick- 
wire,  54  N.  Y.  226 ;  The  Borrowdale, 
39  Fed.  Rep.  376.  See  Powers  v.  Shep- 
ard.  48  N.  Y.  540. 

2  Baiinett  v.  Jacksonville,  19  Fla. 
664 ;  Nash  v.  Wliite's  Bank,  37  Hun, 
57;  Medical  CoUege  v.  Muldon,  46 
Ala.  603.  Amendatory  acts  should 
not  receive  a  forced  construction  to 
make  them  repealing  statutes.  Lu- 
cas County  V.  Chicago,  Burlington  & 
Q.  R'y  Co.  67  Iowa,  541. 

3  Ely  V.  Holton,  15  N.  Y.  595; 
Moore  v.  Mausert,  49  id.  332 ;  Nash  v. 
White's  Bank,  37  Hun,  57 ;  Syracuse 
Savings  Bank  v.  Town  of  Seneca 
Falls,  86  N.  Y.  317;  Goillotel  v. 
Mayor,  etc.  87  N.  Y.  441 ;  Calhoun  v. 
Delhi,  etc.  R  R  Co.  28  Hun,  379; 
KerUnger  v.  Barnes,  14  Minn.  526; 
New  York.  etc.  R  R  Co.  v.  Van  Horn, 
57  N.  Y.  473,  477 ;  Murray  v.  Gibson, 
15  How.  421;  Gamble  v.  Beattie,  4 
How.  Pr.  41 ;  Benton  v.  Wickwire,  54 


N.  Y.  226;  Matter  of  Peugnet,  67 
N.  Y.  444 ;  McEwen  v.  Den,  Lessee, 
24  How.  242 ;  Walker  v.  State,  7  Tex. 
App.  245;  Goodno  v.  Oshkosh,  81 
Wis.  127;  State  v.  Ingei-soll,  17  id. 
631 ;  Mann  v.  McAtee,  37  CaL  11 ; 
Kelsey  v.  KendaU,  48  Vt  24 ;  Bay  v. 
Gage,  36  Barb.  447 ;  Bratton  v.  Guy, 
12  S.  C.  42 ;  McGeehan  v.  Burke,  37 
La.  Ann.  156;  State  v.  Brewster,  3 
Am.  &  Eng.  Corp.  Cas.  551 ;  Kamer- 
ick  V.  Castlemau,  21  ]\lo.  App.  587 ; 
State  V.  Andrews,  20  Tex.  230 ;  Mc- 
MuUen  v.  Guest,  6  Tex.  275 ;  State  v. 
Baldwin,  45  Conn.  134 ;  Alexander  v. 
State,  9  Lid.  337 ;  Cordell  v.  State.  22 
id.  1 ;  Martindale  v.  Martindale,  10  id. 
566 ;  FuUerton  v.  Spring,  3  Wis.  667 ; 
Stingle  V.  Nevel,  9  Oregon.  62 ;  Laude 
V.  Chicago,  etc.  R"y  Co.  33  Wis. 
640 ;  Glentz  v.  State,  38  id.  549 ;  Pow- 
ers V.  Shepai-d,  48  N.  Y.  540 ;  United 
Hebrew  B.  Asso.  v.  Bensliimol,  130 
Mass.  325 :  Morrisse  v.  Royal  British 
Bank,  1  C.  B.  (N.  S.)  67 ;  Middleton  v. 
New  Jei-sey,  etc.  Co.  26  N.  J.  Eq.  269. 

4  Goodno  V.  Oshkosh.  31  Wis.  127; 
People  V.  Supervisoi-s,  67  N.  Y.  109. 

s  Moody  V.  Seaman,  46  Mich.  74» 


172  AMENDATORY    ACTS. 

The  word  "  hereafter  "  used  in  the  statute  as  amended  must 
be  construed  distributively.  As  to  cases  within  the  statute  as 
originally  enacted,  it  means  subsequent  to  the  passage  of  the 
original  act ;  as  to  cases  brought  within  the  statute  by  the 
amendment,  it  means  subsequent  to  the  time  of  the  amend- 
ment.^ It  is  a  general  rule,  however,  that  an  amended  statute 
is  construed,  as  regards  any  action  had  after  the  amendment 
was  made,  as  if  the  statute  had  been  originally  enacted  in  the 
amended  form.- 

§  134.  Repeal  and  re-enactmeut. —  Where  there  is  an  ex- 
press repeal  of  an  existing  statute,  and  a  re-enactment  of  it  at 
the  same  time,  or  a  repeal  and  a  re-enactment  of  a  portion  of  it, 
the  re-enactment  neutralizes  the  repeal  so  far  as  the  old  law  is 
continued  in  force.  It  operates  without  interruption  where  the 
re-enactment  takes  effect  at  the  same  tune.*  The  intention 
manifested  is  the  same  as  in  an  amendment  enacted  in  the 
form  noticed  in  the  preceding  section.  Offices  are  not  lost ;  * 
corporate  existence  is  not  ended ;  ^  inchoate  statutory  rights 
are  not  defeated ;  ^  a  statutory  power  is  not  taken  away "  nor 
criminal  charges  affected  ®  by  such  repeal  and  re-enactment  of  the 
law  on  which  they  respectively  depend.  This  rule  was  applied 
in  Walker  v.  State,^  though  after  a  conviction  for  murder  and  a 
sentence  of  death  pronounced,  and  pending  an  appeal  there- 
from, the  revised  penal  code  took  effect  and  changed  the  pre- 
vious penalty  for  the  offense  fi'om  "  death  "  to  "  death  or  con-, 
finement  in  the  penitentiary  for  life." 

1  Matter  of  Peugnet,  67  N.  Y.  444  *  State  v.  Baldwin,  45  Conn.  134 

2  Holbrook  v.  Nichol,  36  III  161 ;  5  United  Hebrew  B.  Asso.  v.  Ben- 
Tumey  v.  Wilton,  id.  385 ;  Conrad  v.  sliimol,  130  Mass.  325 ;  Wright  v. 
NaU,  24  Mich.  275 ;  Kamerick  v.  Cas-  Oakley,  5  Met.  400,  406 ;  Steamship 
tleman,  21  Mo.  App.  587 ;  Queen  v.  Co.  v.  Johffe,  2  Wall  450. 

St.  Giles,  3  E.  &  E.  224 ;  Ashley  V.  Har-  ecaperon  v.  Sti-out,  11  Nev.  304; 
rington,  1  D.  Chip.  348 ;  HarreU  v.  Skj^rme  v.  Occidental,  etc.  Co.  8  id- 
Harrell,  8  Fla,  46.  219 ;   Moore  v.  Kenockee,  75  Mich. 


3  FuUerton  v.  Spring,  3  Wis.  667 
Laude  v.  Chicago,  etc.  R.  R.  Co.  33  id, 
640 ;  Schef tels  v.  Tabert,  46  id.  439 
Middleton  v.  N.  J.  &  C.  R'y  Co.  26  N.  J, 
Eq.  269 ;  Glentz  v.  State,  38  Wis.  549 
Moore  v.  Kenockee,  75  I\Iicli.  332 
Junction  City  v.  Webb,  23  Pac.  Rep. 
1073  (Kan,X 


332. 

7  Middleton  v.  New  Jersey,  etc.  Co. 
26  N.  J.  Eq.  269. 

s  State  V.  Cumber,  37  Wis.  29S; 
State  V.  Wish,  15  Neb.  448. 

9  7  Tex.  App.  245. 


AMENDATORY   ACTS.  173 

If  a  greater  penalty  is  imposed  for  an  offense  defined  in  the 
re-enacted  law,  the  previous  law  is  deemed  repealed ;  and  after 
such  repeal  takes  effect  there  can  be  no  punishment  inflicted 
for  any  offense  committed  contrary  to  its  provisions  while 
they  were  in  force.^  A  repeal  is  not  rendered  inoperative  by 
a  re-enactment  where  they  are  not  simultaneous,  where  there 
is  an  interval  of  time  after  the  repeal  takes  effect  before  the 
re-enactment  goes  into  operation  ;2  or  where,  instead  of  the 
old  law  ceasing  to  operate  by  repeal,  it  has  served  its  purpose  — 
is  exhausted  and  spent  before  the  re-enactment.* 

§  135.  Amendments  hy  implication  not  Avitliin  the  consti- 
tutional requirement. —  It  has  been  held  in  Nebra^a  that  if 
a  statute  is  intended  f  o  be  amendatory,  and  is  clearly  so,  it  is 
within  this  provision  of  the  constitution,  though  fi-amed  as  an 
Independent  act  and  complete  in  itself;  that  being  amenda- 
tory, it  should  be  expressly  so ;  that  the  law  as  amended  should 
be  given  in  fuU  with  such  reference  to  the  old  law  as  will 
clearly  show  for  what  the  new  law  is  substituted.*  When, 
however,  an  act  properly  constructed  amends  certain  sections, 
and  the  change  so  made  impliedly  modifies  certain  other  pro- 
visions to  bring  them  into  harmony,  this  effect  does  not  require 
the  sections  thus  modified  to  be  included  as  changed  in  the 
amendatory  act.*  It  is  generally  held  that  though  a  supple- 
mentary act,^  or  an  independent  act,  if  complete  in  itself, 
though  it  consequentially  modifies,  like  an  amendatory  act, 
certain  existing  statutes,  it  is  not  necessary  to  include  them  as 
thus  modified.  This  constitutional  provision  is  held  not  to 
apply  to  such  cases ;  they  are  held  not  to  be  within  the  mis- 
chief intended  to  be  remedied.^    A  statute  which  merely  fur- 

1  State  V.  Van  Stralen,  45  Wis.  437 ;  Colo.  403 ;  Evernham  v.  Hiilit,  45 
State  T.  CampbeU,  44  id.  529.  N.  J.  L.  53 ;  Lake  v.  State,  18  Fla. 

2  Kane  v.  New  York,  etc  R'y  Co.  49  501 ;  Timm  t.  Harrison,  109  IlL  593 ; 
Conn.  139.  People  v.  Wright,  70  id.  388 ;  Home 

3  Emporia  v.  Norton,  16  Kan.  236.    Insurance  Co.  v.  Taxing  Dist  4  Lea, 
<  Smails  v.  Wliite,  4  Neb.  357 ;  Sot-    644 ;  Scales  v.   State,  47    Ai-k.  476 ; 

ereign  v.  State,  7  id.  409,  413.  Bird    t.  County    of  Wasco,    3   Or. 

5  Swartwout  v.  !^Iich.  Cent  R  R,  Co.  282 ;  Harrington  v.  Wands.  23  Mich. 

24  Mch.  389;    Law-rence  v.  Gram-  385;    State  v.   Cross,   38   Kan.   696; 

bling,  13  S.  C.  125.  Pollard,  Ex  parte.  40  Ala.  77 ;  Ware 

*-  Lockhart  v.  Troy,  48  Ala,  579.  v.  St  Louis,  etc.  Co.  47  id.  667 ;  Tus- 

■  People  V.  Mahaney,  13  Mich.  484 ;  kaloosa  Bridge  Co.  v.  Olmstead,  41  id, 

Denver  Circle  R  R  Co.  v.  Nestor,  10  9 ;  Fleischner  v.  Chadwick,  5  Oregon, 


174:  AilENDATOEY    ACTS. 

nishes  a  rule  of  construction  for  prior  statutes,  and  is  not  in 
terms  an  amendment,  is  not  within  the  meaning  of  this  consti- 
tutional regulation ;  it  need  not  set  forth  the  statutes  affected.^ 
jSTor  is  a  statute  amendatory  which  repeals  in  general  terms 
all  acts  and  parts  of  acts  which  are  inconsistent  with  its  pro- 
visions.^ Such  a  provision  in  an  unconstitutional  act  has  no 
effect.^ 

There  is  another  kind  of  legislation  which  does  not  require 
a  restatement  of  existing  statutes  referred  to  because  not  a 
revisal,  revival  or  amendment  of  such  statutes.  The  legislature 
may  subject  procedure  to  attain  the  objects  of  new  legislation 
to  existing  general  statutes  without  re-enacting  them.* 

152 ;  Branliam  v.  Lange,  16  Ind  497 ;  may   not   be    extended   under   the 

Lehman    v.    McBride,   15    Ohio   St  Arkansas  constitution  by  a  general 

573 ;  Sliields  v.  Bennett,  8  W.  Va.  87 ;  reference  to  the  title  of  the  statute. 

State  V.  Cain,  id.  720 ;  Anderson  v.  Watkins  v.  Eureka  Springs,  [49  Ark. 

Commonwealth,  18  Gratt  295;  Fal-  131. 

coner  v.  Robinson,  46  Ala.  840.    See  *  People  ex  rel.  v.  Banks,  67  N.  Y. 

Central  R.  R.  Co.  v.  Hamilton,  71  Ga.  575.    This  case  was  decided  under 

461 ;  Muscogee  R  R.  v.  Neal,  26  id.  section  17,  article  3,  of  the  constitu- 

121.  tioa  of  New  York,  declaring  that  no 

1  State  V.  Geiger,  65  Mo.  306.  act  should  be  passed  which  shall  pro- 

2  Medical  College  v,  Muldon,  46  Ala.  vide  that  any  existing  law  or  any 
603 ;  State  v.  Gaines,  1  Lea,  734  part  thereof  shaU  be  made  or  deemed 

3  Campau  v.  Detroit,  14  Mich.  276 ;  a  part  of  said  act,  or  which  shall 
Davis,  Ex  parte,  21  Fed.  Rep.  396 ;  enact  that  any  existing  law  or  any 
People  ex  reL  v.  Fleming,  7  Colo.  230.  part  thereof  shall  be  apphcable  ex- 
The  provisions  of  an  existing  statute  cept  by  inserting  it  in  such  act 


CHAPTER  VIII. 


REPEALING  ACTS. 


g  136.  Duration  of  statutes  and  power 
of  repeal. 

137.  Express  and  implied  repeal 

138.  Repeals  by  implication  not  fa- 

vored. 

139.  Implication  from  negative  or 

affirmative  statutes. 

140.  Repealing  eflfect  of    affirma- 

tive statutes  conferring 
power. 

141.  Where  there  is  grant  of  part 

of  power  already  possess^d- 

142.  Repealing  eflfect  of  acts  chang- 

ing criminal  laws. 
145.  Grant  of  greater  or  different 
power  or  right 


§  146, 


Repeal  by  radical  change  of 
leading  part. 

Repeal  of  inconsistent  legisla- 
tion. 

Reconcilement  of  affirmative 
statutes. 
154.  Repeal  by  revision. 
157.  General  laws  will  not  repeal 
those  which  are  special 

The  later  law  which  causes  re- 
peal 

Effect  of  repeal  as  to   civil 
rights. 

166.  Eflfect  of  repealing  penal  laws. 

167.  Saving  clauses. 

168.  Revival  by  repeal  of  repealing 

statute. 


14 


148. 


160. 


162. 


§  136.  Duration  of  statutes  aud  power  of  repeal.—  Stat- 
utes are  perpetual  when  no  time  is  stated.^  A  temporary- 
statute  operates  until  its  time  expires.^  The  operation  of  stat- 
utes may  be  suspended ;  then  they  will  come  into  operation 
when  the  period  of  suspension  expires.^  A  temporary  stat- 
ute made  perpetual  before  its  expiration  is  in  effect  perpetual 
from  the  beginning.*  Statutes  have  this  duration  subject  to 
the  continuous  power  of  repeal.  A  state  legislature  has  a 
plenary  law-making  power  over  all  subjects,  whether  pertain- 


1  United  States  v.  Gear,  3  How. 
120. 

2  Brown  v.  Barry,  3  DalL  365. 

^  A  state  of  war  between  the  gov- 
ernments of  the  creditor  and  debtor 
suspends  the  right  and  opportunity 
of  a  citizen  of  one  belligerent  to  sue 
in  the  courts  of  the  other,  and  as  a  con- 
sequence the  statute  of  hmitations  is 
suspended  dm-ing  the  existence  of  the 
war,  and  that  time  is  not  computed 


in  hmitation  of  the  action.  Hanger 
V.  Abbott,  6  WalL  532 ;  a  C.  18  U.  S. 
Sup.  Ct  93a,  and  note.  The  impUed 
suspension  should  not  continue  longer 
than  the  real  disability  barred  tlie  in- 
stitution of  the  action-  Braun  v 
Sauerwein.  10  WalL  218. 

*  Dingley  v.  Moor,  Cro.  Eliz.  750 ; 
Rex  V.  Morgan,  Str.  1066;  Rex  v. 
Swiney,  Alcock  &  Napier,  131. 


176  REPEALING   ACTS. 

ing  to  persons  or  things,  within  its  territorial  jurisdiction,  either 
to  introduce  new  laws  or  repeal  the  old,  unless  prohibited  ex- 
pressly or  by  implication  by  the  federal  constitution  or  hm- 
ited  or  restrained  by  its  own.^  It  cannot  bind  itself  or  its 
successors  by  enacting  irrepealable  laws  except  when  so  re- 
strained. Every  legislative  body  may  modify  or  abolish  the 
acts  passed  by  itself  or  its  predecessors.-  This  power  of  repeal 
may  be  exercised  at  the  same  session  at  which  the  original 
act  was  passed ;  *  and  even  while  a  bill  is  in  its  progress  and 
before  it  becomes  a  law.''  The  legislature  cannot  bind  a  future 
legislature  to  a  particular  mode  of  repeal.^  It  cannot  declare 
in  advance  the  intent  of  subsequent  legislatures  or  the  effect 
of  subsequent  legislation  upon  existing  statutes.^  A  repeahng 
clause  in  a  statute  may  be  valid,  although  every  other  clause 
is  unconstitutional,  if  such  is  plainly  the  legislative  intent.'^ 
But  where  the  repeal  is  intended  to  clear  the  way  for  the 
operation  of  the  act  containing  th$  repealing  clause,  thereby 
showing  an  intention  to  displace  the  old  law  with  the  new,  if 
the  latter  is  unconstitutional  the  repealing  clause  would  be 
dependent  and  inoperative.^ 

§  137.  Modes  of  repeal,  express  or  implied. —  A  repeal  will 
take  effect  from  any  subsequent  statute  in  which  the  legisla- 
ture gives  a  clear  expression  of  its  will  for  that  purpose.^    The 

1  Musgrove  v.  Vicksburg,  etc.  R.  R.  818 ;  Boiu-gignon,  etc.  Assoc,  v.  Com- 

Co.  50  Miss.  677.  monwealth,  98  Pa.  St.  54 ;  People  v. 

2Bloomerv.Stolley,  5  McLean,  158;  Lyttle,  1  Idaho,  143;  Houghton  Co. 

Swift  V.  Newport,  7  Bush,  37 ;  McNeil  v.  Commissioners  of  St.  L.  O.  23  ]\Iich. 

V.  Commonwealth,  12  id.  727 ;  Moore  270 ;  Brown  v.  Bany,  8  DalL  365.  See 

T.   New  Orleans,  32  La,  Ann.  726 ;  Manlove  t.  Wliite,  8  CaL  376. 

City  CouncU  v.  Baptist    Church,  4  *  The  Southw^ark  Bank  v.  Common- 

Sti-ob.  306 ;  Files,  Auditor,  v.  Fuller,  wealth,  26  Pa  St  446. 

44  Ark.  273 ;  Wall  t.  State,  23  Ind. ,  5  Kellogg  v.  Oshkosh,  14  Wis.  623. 

153 ;  De  Groot  v.  United  States,  5  6  Mongeon  t.  People,  55  N.  Y.  613. 

Wall  419 ;  Monet  v.  Jones,  10  3m.  &  1  Ely  v.  Thompson,  3  A.  K.  Marsh. 

Mar.  237 ;  Chambers  v.  State,  25  Tex.  70. 

307 ;   GiEeland  v.  Schuyler,   9  Kan.  *  Ante,  §  135. 

569.    See  Oleson  v.  R.  R.  Co.  36  Wis.  » State  t.  Judge,  14  La.  Ann.  486 ; 

383.  Casey  v.  Harned,  5  Iowa,  1 ;  Leard 

3  Spencer  v.  State,  5  Ind.  41,  50 ;  v.  Leard,  30  Ind,  171.  A  recital 
Ham  V.  State,  7  Blackf.  314 ;  Attor-  in  a  statute  that  a  former  statute 
ney -General  v.  Brown,  1  Wis.  513 ;  was  or  was  not  repealed  is  not  con- 
In  re  Oregon,  etc.  Co.  3  Sawy.  614;  elusive,  for  it  is  but  a  legislative 
Hex  V.  Middlesex  Justices,  2  B.  &  Ad.  declaration  on  a   judicial  question. 


EEPEALIXa    ACTS.  1T7 

"word  repeal  may  be  used  in  a  limited  sense.^  The  suspension 
of  a  statute  for  a  limited  time  is  not  a  repeal  "^  —  it  properly 
signifies  the  abrogation  of  one  statute  by  another.'  It  is 
express  when  declared  in  direct  terms ;  implied  when  the  in- 
tention to  repeal  is  inferred  from  subsequent  repugnant  legisla- 
tion. In  neither  form  will  the  repeal  be  effected  and  operative 
until  the  repealing  statute  goes  into  effect.* 

Laws  are  presumed  to  be  passed  with  dehberation,  and  with 
a  knowledge  of  all  existing  laws  on  the  same  subject.*  If  they 
profess  to  make  a  change,  by  substitution,  of  new  for  old  pro- 
visions, a  repeal  to  some  extent  is  thus  suggested,  and  the 
■extent  readily  ascertained.  Thus,  amendment  is  frequently 
made  by  enacting  that  a  certain  section  shall  be  so  amended 
as  "  to  read  as  follows ; "  then  inserting  the  substituted  provis- 
ion entire  without  specification  of  the  change.  The  parts  of 
the  former  law  left  out  are  repealed.  This  intention  is  mani- 
fest." There  is  a  negative  necessarily  implied  that  such  elim- 
inated portion  shall  no  longer  be  in  force.  The  re-enacted 
portions  are  continuations  and  have  force  from  their  original 
enactment.'     Where  a  statute  repeals  all  former  laws  within 

United  States  v.  Claflin,  97  U.  S.  546 ;  IngersoU,    17  Wis.  631 ;    Goodno  v. 

Ogden  V.  Blackledge,  2  Cranch,  273.  Oslikosh,  31  WLs.  127 ;    Breitung  v. 

Courts  camiot  regard  a  statute  as  re-  Liadauer,    37    Mich.    217 ;    Longiois 

pealed  by  non-user  alone.     Pearson  v.  v.   Longiois,  48  Ind.    60 ;   Mosby  v. 

International  Distillery,  72  Iowa,  348.  Ins.  Co.  31  Gratt.  629 ;  State  v.  Wish, 

1  Smith  V.  People,  47  N.  Y.  330, 338 ;  15  Neb.  448.  See  Hirschbui-g  v.  Peo- 
Rex  V.  Rogers,  10  East,  573 ;  Camden  pie,  6  Colo.  145. 

V.  Anderson,  6  T.   R.  723;   State  v.  ^Ely    v.   Holton,    15    N.    Y.    595; 

Baldwin,  45  Conn.  134 ;  Robertson  v.  Goodno  v.  Oshkosh,  supra.  The  court 

Demoss,  23  Miss.  298,  301 ;   State  v.  say  in  tliis  case :  "  The  original  sec- 

Coimty    Court,    53    Mo.    128.      See  tion,  as  an  independent  and  distinct 

Hu-schburg  v.  People,  6  Colo.  145 ;  statutoiy  enactment,  ceased  to  have 

Warren  R.   R   Co.  v.  Belvidere,  35  any  existence  the  veiy  moment  the 

N.  J.  L.  584,  587.  amendatory  act  was  passed  and  went 

2  Brown  v.  Barry,  3  Dall.  365.  into  effect,  and  whatever  provisions 

3  Abb.  L.  Die.  tit.  Repeal.  of  it  remained  as  law  were  such  solely 
*  Spaulding  v.  ALford,  1  Pick.  33.  by  vktue  of  being  again  enacted  in 
^  Boweu  V.  Lease,  5  Hill,  221,  226 ;    the  amendment     The  original  sec- 

Landis  v.  Landis,  39  N.  J.  L.  274,  277.  tion,   as  a  separate  statute,  was  as 

<•  Moore  v.  Mausert,  49  N.  Y.  332 ;  effectually  repealed  and  obUterated 

People  V.    Supervisors,  67  id.    109 ;  from  the  statute  book  as  if  the  repeal 

McRoberts  v.  Washburne,  10  Minn.  23 ;  had  been  made  lq  du'ect  and  express 

State  V.  Andrews,  20  Tex.  230 ;  Goss-  words  and  none  of  its  provisions  had 

ler  V.  Goodrich,  3  Cliff.  71 ;  State  v.  been  re-enacted." 
12 


178  REPEALING   ACTS. 

its  purview,  tlie  intention  is  obvious  and  is  readily  recognized' 
to  sweep  away  all  existing  laws  upon  the  subjects  with  which 
the  repealing  act  deals.' 

The  purview  is  the  enacting  part  of  a  statute,  in  contradis- 
tinction to  the  preamble ;  and  a  repeal  of  all  acts  within  the 
purview  of  the  repealing  statute  should  be  understood  as  in- 
cluding all  acts  or  parts  of  acts  in  relation  to  all  cases  which 
are  provided  for  by  the  repealing  act,  and  no  more.-  But  a 
statute  may  have  the  effect  to  repeal  a  former  statute  or  some 
provision  of  it  though  it  be  silent  on  the  subject  of  repeal.  In 
such  cases  repeal  is  inferred  from  necessity,  if  there  be  such 
conflict  that  the  old  and  new  statutes  cannot  stand  together.* 
Repugnancy  in  principle  merely,  between  two  acts,  forms  no 
reason  why  both  may  not  stand.^  Nor  is  one  statute  repealed 
by  the  repugnant  spirit  of  another ;  ^  nor  for  conflict  with  an 
unconstitutional  provision.^ 

It  has  been  held  that  one  private  act  wiU  not  repeal  another 
by  implication.^  It  has  been  held  that  a  statute  may  become 
repealed  by  adverse  custom  or  long  non-user.^  As  repeal  can 
only  proceed  from  the  legislature,  the  obsoleteness  of  the  non- 
used  statute  must  be  in  some  way  recognized  in  subsequent 
legislation.  Popular  disregard  of  a  statute,  or  custom  opposed 
to  it,  AviU  not  repeal  it.^    A  statute  does  not  cease  on  removal 

lOgden  V.  Witherspoon,.  2  Hay-  Park.  Cr.  241 ;  Shepardson  v.  Eailroad 
wood,  404;  Harrington  v.  Rochester,  Co.  6  Wis.  605;  State  v.  Bui-ton,  11 
10  Wend.  547.  id.  50 ;  Miller  v.  Edwards,    8    Colo. 


2  Payne  v.  Conner,  3  Bibb,  180 
Commonwealth  v.  Watts,  84  Ky.  537 
Patterson  V.  Caldwell,  1  Met.  (Ky.)489 


528;  State  v.  HaUock,  14  Nev.   202; 
Devoy  v.  Mayor,  35  Barb.  264 

•  Tinistees  v.  Laii-d,  4  De  G.  M.  &  G. 


Grigsby  v.  Barr,  14  Bush,  330.    See  732.    See   Sclmeider   v.    Staples,  66 

Gorham  v.  Luckett,  6  B.  Mon.  146.  Wis.  167. 

"  See  next  section.  8  Hill  v.  Smith,  Morris,  70 ;  O'Han- 

*  Smith,  Ex  parte,  40  Cal.  419.  Ion  v.  Myers,  10  Rich.  L.  128 ;  Watson 

5  State  V.  Macon  Co.  Ct  41  Mo.  453,  v.  Blaylock,  2  MiUs  (S.  G),  351 ;  Can- 
454     See  Cass  v.  DiUon,  2  Ohio  St  ady  v.  George,  6  Rich.  Eq.  103. 

612 ;  State  v.  Cincinnati,  19  Ohio,  197.  a  Kitchen  v.  Smith,  101  Pa.  St.  452 ; 

6  Campau  v.  Detroit,  14  Mich.  285 ;  Homer  v.  Commonwealth,  106  id. 
SulUvan  v.  Adams,  3  Gray,  476 ;  Peo-  221 ;  James  v.  Commonwealth,  12  S. 
pie  V.  Fleming,  7  Colo.  230 ;  Childs  v.  &  R.  220 ;  White  v.  Boot,  2  T.  R  274 ; 
Shower,  18  Iowa,  261 ;  Stephens  v.  Leigh  v.  Kent,  3  id.  362 ;  Tj'son  v. 
BaUou,  27  Kan.  594;  Tims  v.  State,  Thomas,  McC.  &  Y.  127;  Rex  v. 
26  Ala-  165 ;  Harbeck  v.  Mayor,  10  Wells,  4  DowL  562 ;  The  India,  33  L.  J. 
Bosw.   366 ;    People    v.   Tiphaine,    3  Rep.  P.  M.  &  A.  193 ;  S.  C.  Br.  &  L. 


EEPEALING    ACTS.  17 'J 

of  some  of  the  evils  it  was  intended  to  provide  against,'  Long 
practice  may  clear  away  ambiguities,  and  have  a  potent  influ- 
ence in  the  interpretation  of  a  statute.'  So  a  long  disuse  of  a 
statute  of  a  penal  nature,  implying  that  it  has  not  been  kept 
in  popular  remembrance,  or  an  intention  of  the  government 
not  to  enforce  it,  may  incline  a  court  to  soften  its  rigors  within 
the  limits  of  judicial  discretion.  Parts  of  a  statute  may  be- 
come useless  and  incapable  of  any  operation  on  account  of  the 
repeal  or  radical  change  of  other  and  fundamental  parts.  Tley 
should  be  deemed  repealed,  because  lifeless  fragments.' 

§  138.  Repeals  by  iiuplicatioii  uot  favored. —  Such  repeals 
are  recognized  as  intended  by  the  legislature,  and  its  intention 
to  repeal  is  ascertained  as  the  legislative  intent  is  ascertained 
in  other  respects,  when  not  expressly  declared,  by  construc- 
tion.* An  implied  repeal  results  fi'om  some  enactment  the 
terms  and  necessary  operation  of  which  cannot  be  harmonized 
with  the  terms  and  necessary  effect  of  an  earlier  act.  In  such 
case  the  later  law  prevails  as  the  last  expression  of  the  legis- 
lative will;  therefore,  the  former  law  is  constructively  re- 
pealed, since  it  cannot  be  supposed  that  the  law-making  |)ower 
intends  to  enact  or  continue  in  force  laws  which  are  contra- 
dictions. The  repugnancy  being  ascertained,  the  later  act  or 
provision  in  date  or  position  has  full  force,  and  displaces  by  re- 
peal whatever  in  the  precedent  law  is  inconsistent  with  it.'^ 

221 ;  Hebbert  v.  Piu-chas,  L.  R.  3  P.  C.  Disti-ict,  4  Lea,  644 ;  Coats  v.  Hill,  41 

650.  Ark.  149 ;  Dobbs  v.  Grand  Junctiou 

1  Mayor,  etc.  v.  Deai-mon,  2  Sneed,  Water  Works,  L.  R  9  Q.  B.  Div.  158 ; 
104.  Rex  V,  Middlesex,  1  Dow.  P.  C.  117 ; 

2  Leigh  V.  Kent,  3  T.  R.  362.  See  Kinney  v.  MaUory,  3  Ala  626 ;  Iverson 
post,  §  308.  V.  State,  52  id.  170 ;  Smith  v.  Speed,  50 

*  Stephens  v.  Ballou,  27  Kan.  594 ;  id.  276 ;  Poulson  v.  Union  Nat  Bank, 
Steamboat  Co.  v.  CoUector,  18  Wall  40  N.  J.  L.  563 ;  Harrison  v.  Walker, 
478,  490.  1  Ga.  32 ;  Fowler  v.  Pirkins,  77  111. 

*  Thorpe  v.  Schooling,  7  Nev.  15.         271 ;  Woods  v.  Jackson  Co.  1  Holmes, 
s  Woo<i  V.  United  States,   16  Pet     379 ;  Hearn  v.  Brogan,  64  ]\Iiss.  334 ; 

342;  New  London,  N.  li.  R.  Co.   v.  Chapoton  v.  Dcti'oit  38  Mich.   636: 

Boston,  etc.  R.  R.  Co.  102  ]\Iass.  389 ;  Gates    v.    Shugrue,    35    Minn.    392 ; 

EU-od  V.  Gilliland,  27  Ga.  467 ;  Peo-  Grant  County  v.  Sels,  5  Oregon,  243 ; 

pie  V.  Burt  43  CaL  560 ;  Jolmson  v.  Hm-st  v.  Hawn,  id.  275 ;  Forqueran 

Byrd,  Hempst  434;  Maddox  v.  Gra-  v.  Donnally,  7  W.  Va.  114:  State  v. 

liam,  2  Met  (Ky.)  56,  76 ;  Mayor,  etc.  Wish,   15  Neb.   448 ;    Public  School 

V.  Jei-sey  City,  etc.  R,  R.  Co.  20  N.  J.  Trustees  v.  Trenton,  30  N.  J.  Eq.  667 ; 

Eq.  360 ;  Home  Ins.   Co.   v.   Taxmg  State  v.  YeweU,  63  Md.  120 ;   Hirsch- 


ISO 


EEPEALIXG    A.CTS. 


Subsequent  legislation  repeals  previous  inconsistent  legisla- 
tion whether  it  expressly  declares  such  repeal  or  not.  In  the 
nature  of  things  it  would  be  so,  not  only  on  the  theory  of  in- 
tention, but  because  contradictions  cannot  stand  together.^  The 
intention  to  repeal,  however,  wiU  not  be  presumed,  nor  the 
effect  of  repeal  admitted,  unless  the  inconsistency  is  unavoid- 
able, and  only  to  the  extent  of  the  repugnance.    Implied  repeals 


burg  V.  People,  6  Colo.  145 ;  Parker 
V.  Hubbard,  64  Ala.  203;  Eiggs  v. 
Brewer,  id.  283 ;  Watson  v.  Kent,  78 
id.  602 ;  Barker  v.  BeH,  46  id.  216 ; 
Galena  v.  Amy,  5  Walk  705;  Fur- 
man  V.  Nichol,  8  id.  44 ;  Tbe  Distilled 
Spirits,  11  id.  356;  Supervisors  v. 
Lackawana  I.  &  C.  Co.  93  U.  S.  619 ; 
Movius  V.  Ai-tbur,  95  id.  144 ;  Arthur 
V.  Homer,  96  id.  137 ;  Clay  County 
T.  Society  for  Saviugs,  104  id,  579; 
Red  Rock  v.  Hemy,  106  U.  S.  596 ; 
O'Flaberty  v.  McDowell,  6  H.  L.  Cas. 
142 ;  Beals  v.  Hale,  4  How.  37 ;  United 
States  V.  Sixty-seven  Packages,  17 
How.  85;  United  States  v.  Walker, 

22  id.  299 ;  McCool  v.  Smith,  1  Black, 
459 ;  Morrison  v.  Rice,  35  Minn.  436 ; 
United  States  v.  One  Himdred  Bar- 
rels of  Spirits,  2  Abb.  U.  S.  305; 
Swann  v.  Buck,  40  IMiss.  268 ;  Bird  v. 
County  of  Wasco,  3  Oreg.  284 ;  Wil- 
cox V.  State,  3  Heisk.  110 ;  Connors 
V.  Carp  River  Iron  Co.  54  Mich.  168 ; 
Pierce  v.  Delamater,  1  N.  Y.  17 ;  Far- 
ley V.  De  Waters,  2  Daly,  192 ;  Bo  wen 
V.  Lease,  5  Hill,  221 :  Straight  v.  Craw- 
ford, 73  Iowa,  676 ;  South wark  Bank 
v.  Commonwealtli,  26  Pa.  St.  446; 
Crow  Dog,  Ex  parte,  109  U.  S.  556 ; 
Lyddy  v.  Long  Island  City,  104  N.  Y. 
218 ;  Osborn,  Ex  parte,  24  Ark.  479 ; 
Furman  v.  Nichol,  3  Cold.  432 ;  Smith 
V.  Hickman,  Cooke,  330 ;  Hockaday 
V.  Wilson,  1  Head,  113 ;  Browning  v. 
Jones,  4  Humph.  69 ;  State  v.  Watts, 

23  Ark,  304 ;  Hamlyn  v.  Nesbit,  37 
Ind.  284 ;  Appeal  Tax  Court  of  Balti- 
more V.  Western  Md.  R  R.  Co.  50 
Md-   275;  People  v.   San  Francisco, 


etc.  R.  R.  Co.  28  CaL  254 ;  Sharp  v. 
Warren,  6  Price,  131 ;  Ruifner  v. 
Hamilton  Co.  1  Disney,  39 ;  Fayette 
Co.  V.  Faires,  44  Tex.  514 ;  Sullivan  v. 
People,  15  ni.  233 ;  People  v.  Grippen, 
20  Cal.  677 ;  Ely  v.  Thompson,  3  A. 
K.  Marsh.  70 ;  BuckaUew  v.  Acker- 
man,  8  N.  J.  L.  48 ;  State  v.  Wilbor, 
1 R.  L  199 ;  Church  v.  Rhodes,  6  How. 
Pr.  281 ;  Central  Iowa  R'y  Co.  v.  Su- 
pervisors, 67  Iowa,  199 ;  Mongeon  v. 
People,  55  N.  Y.  613 ;  People  v.  Pal- 
mer, 52  id.  83 ;  Colhns  v.  Chase,  71 
Me.  434;  Miher  v.  State,  33  ]\Iiss. 
361;  Brown  v.  ChanceUor,  61  Tex. 
437 ;  Planters'  Bank  v.  State,  6  Sm. 
&  M.  628;  House  v.  State,  41  Miss. 
737 ;  McAfee  v.  Southern  R  R  Co. 
36  IVIiSS.  669 ;  Gayles'  Heu-s  v.  Will- 
iams, 7  La.  162 ;  Saul  v.  His  Credit- 
ors, 5  Martm  (N.  S.),  569;  S.  C.  16 
Am  Dec.  212 ;  Kinney  v.  MaHory,  3 
Ala.  626 ;  Dugan  v.  Gittings,  3  Gill, 
138 ;  EgyjDt  Street,  2  Grant's  Cas.  455 ; 
White  V.  NashvHle,  etc.  R  R  Co.  7 
Heisk.  518. 

1  Re  Hickory  Tree  Road,  43  Pa.  St 
139,  142 ;  People  v.  Biu-t,  43  Cak  560 ; 
MorraU  v.  Sutton,  11  PhiL  533 ;  Com- 
mercial Bank  of  Natchez  v.  Cham- 
bers, 8  Sm.  &  M.  9 ;  Constantine  v.  Con- 
stantine,  6  Ves.  100 ;  Brown  v.  Great 
W.  R'y  Co.  9  Q.  B.  D.  753 ;  Co.  Lit  112. 
The  adoption  of  a  treaty  with  the 
stipulations  of  winch  the  provisions 
of  a  state  law  are  inconsistent  is 
eqmvalent  to  the  repeal  of  such  law. 
Denn  ex  demise  Fisher  v.  Hamden, 
1  Paine,  55.  The  repeal  of  an  act 
effects  also  a  repeal  of  an  act  amend- 


EEPEALIXG    ACTS. 


181 


are  not  favored.^  One  statute  is  not  repugnant  to  another  unless 
they  relate  to  the  same  subject  and  are  enacted  for  the  same 
purpose.  When  there  is  a  difference  in  the  whole  purview 
of  two  statutes  apparently  relating  to  the  same  subject,  the 
former  is  not  repealed.^  Such  is  the  general  doctrine,  in  which 
all  the  cases  concur.  In  its  practical  administration  other 
rules  obtain  suggested  by  the  nature  of  the  cases  which  occur, 
and  the  forms  of  legislation  raising  the  question  of  repeal. 
There  is  an  obvious  difference  in  repealing  effect  between 
negative  and  affirmative  statutes.  We  will  endeavor  to  eluci- 
date this  distinction. 

§  139.  Negative  and  affirm ative  st.atutes. —  A  negative  stat- 
ute is  one  expressed  in  negative  words ;  as,  for  example :  "  iVo 
jperson  who  is  charged  with  an  offense  against  the  law  shall 
be  punished  for  such  offense  unless  he  shall  have  been  duly 
and  legally  convicted,"  etc.  "  No  indictment  for  any  offense 
shall  be  held  insufficient  for  want  of  the  averment  of  any  mat- 
ter unnecessary  to  be  proved,"  etc.  An  affirmati'oe  statute  is 
one  enacted  in  affirmative  terms.     Alderson,  B.,  observed  in 


atory  of   the    act    repealed.    Hem- 
Btrat  V.  Wassum,  49  Cal.  273, 

1  Brown  v.  McCormick,  28  Mch. 
215 ;  Breitung  v.  Lindauer,  37  id.  217 
Davies  v.  Creighton,  33  Gratt.  696 
Succession  of  Hebert,  5  La.  Ann.  121 
Nixon  V.  PifFet,  16  id.  379;  Desban 
V.  Pickett,  id.  350 ;  Centi-al  R.  R.  v. 
Hamilton,  71  Ga.  461 ;  Hockaday  v. 
Wilson,  1  Head,  118;  Gate  v.  State, 
3  Sneed,  120 ;  Kinney  v.  Malloiy,  3 
Ala.  626;  Saul  v.  His  Creditors,  5 
Martin  (N.  S.),  569 ;  S.  C.  16  Am.  Dec. 
212;  United  States  v.  Twenty -five 
Cases  of  Cloth,  Crabte,  856 ;  Ryan's 
Case,  45  Mich.  173;  State  v.  Alexan- 
der, 14  Rich.  247 ;  Van  Rensselaer  v. 
Snyder,  9  Barb.  302,  308 ;  Higgins  v. 
State,  64  Md.  419 ;  State  v.  Watts,  23 
Ark.  304;  Collins  t.  Chase,  71  Me. 
434;  Hai-ford  v.  United  States,  8 
Cranch,  109 ;  Reg.  v.  Inliabitants,  etc. 
2  Q.  B.  84 ;  Wood  v.  United  States, 
16  Pet  342 ;  Brown  v.  County  Com- 
missioners, 21  Pa,   St.   37 ;  Street  v. 


Commonwealth,  6  Watts  &  S.  209 ; 
Williams  v.  Potter,  2  Barb.  316 ;  Bowen 
V.  Lease,  5  Hill,  221 ;  People  v.  Deming, 
1  Hilt.  271 ;  Smith  t.  Hickman,  Cooke, 
330 ;  Buchanan  v.  Robinson,  3  Baxt 
147 ;  Central  Iowa  R'y  Co.  v.  Super- 
visors, 67  Iowa  199 ;  Stephens  v.  Bal- 
lon, 27  Kan.  594 ;  Elizaliethtown,  etc. 
R.  R  Co.  V.  Elizabeth  town,  12  Bush, 
233 ;  Van  Hagan,  Ex  pai-te,  25  Ohio 
St.  426 ;  Montgomery  v.  Board  of  Ed- 
ucation, 74  Ga.  41 ;  Red  Rock  v. 
Henry,  106  U.  S.  596;  Arthur  v. 
Homer,  96  U.  S.  137 ;  Dugan  v.  Git- 
tings,  3  GiU,  138;  Chew  Heong  v. 
United  States,  112  U.  S.  536 ;  Aber- 
nathy  v.  State,  78  Ala  411 ;  Herr  v. 
Seymour,  76  id.  270 ;  Cook  v.  3Ieyer 
Bros.  73  id.  580 ;  Jackson  v.  State,  76 
id.  20 ;  Tracy  v.  Tuffly,  134  U.  S.  206. 
2  The  King  v.  Downs,  3  T.  R  569 : 
Bowen  v.  Lease,  5  HUl,  221,  225 ; 
United  States  v.  Claflm,  97  U.  8. 
546 ;  United  States  v.  Gear,  3  How. 
120 ;  Miller  v.  Edwards,  8  Colo.  528. 


182  KEPEALING    ACTS. 

Mayor  of  London  v.  The  Queen,^  that  "  the  words  '  negative  * 
and  'affirmative'  statutes  mean  nothing.  The  question  is 
whether  they  are  repugnant  or  not  to  that  which  before  ex- 
isted. That  may  be  more  easily  shown  when  the  statute  is 
negative  than  when  it  is  affirmative ,  but  the  question  is  the 
same."  If  a  statute  contrary  to  a  former  one  be  expressed 
in  negative  words  it  operates  to  repeal  the  former ;  so  ex- 
pressed it  takes  away  any  different  common-law  right  or 
remedy.'^  In  that  form  it  is  prohibitory  and  generally  man- 
datory.* An  act  providing  that  "  no  corporation  "  shall  inter- 
pose the  defense  of  usury  repeals  the  laws  against  usury  as 
to  corporations.*  An  act  that  "  no  beer  "  shaU  be  sold  with- 
out a  license  abrogates  any  previous  exemptions  from  licens- 
ing regulations.^ 

The  repugnance  of  any  previous  statute  contrary  to  an  en- 
actment in  negative  words  is  very  readily  seen.  Is  ot  so  in  the 
case  of  affirmative  statutes.  It  is  upon  such  enactments  that 
debatable  questions  of  repeal  more  frequently  arise.  The  re- 
peal in  either  case  results  from  repugnancy,  but  this  is  not  so 
easily  perceived  when  the  repealing  statute  is  affirmative  in 
form.  When  it  prescribes  an  exclusive  rule  it  implies  a  nega- 
tive, and  repeals  whatever  of  existing  law  stands  in  the  way  of 
its  operation.  The  intention  to  make  the  enactment  exclusive 
may  be  deduced  from  the  nature  of  the  subject,  and  its  neces- 
sary operation  in  comparison  with  the  necessary  effect  of  prior 
laws.  A  statute  in  derogation  of  an  existing  statute  will  be 
strictly  construed  in  consequence  of  implied  repeals  being  re- 
garded with  disfavor."     So  an  intention  to  change  the  rule  of 

1 13  Q.  B.  33.  Gas  C.  Co.  v.  Clarke,  11  C.  B.  (N.  S.) 

2Bac.  Abr.  tit.  Statute,  G.  814. 

SHurford  v.  Omaha,  4  Neb.  386;  •«  Ballston  Spa  Bank  v.  Marine  Bank, 

Bladen    v.   Philadelphia,   60  Pa.   St.  16  Wis.    120;    Ciu'tis  v.   Leavitt,  15 

464 ;  State  v.  Smith,  67  Me.  328 ;  Peo-  N.  Y.  1,  85. 

pie  V.  Allen,  6  Wend.  486 ;  Koch  v.  5  Read  v.  Storey,  6  H.  &  N.  423.   See 

Bridges,  45  Miss.  247 ;  Rex  v.  New-  Strauss  v.  Heiss,  48  Md.  292. 

comb,  4  T.  R.  368 ;  Rex  v.  Leicester,  « Commonwealth  v.  Knapp,  9  Pick. 

9  D.  &  R.  772 ;  7  B.  &  C.  12 ;  Reg.  v.  496 ;  State  v.  Norton,  23  N.  J.  L.  33 ; 

Fordham,  11  A.  &  El.  73;  Bowman  Melody  v.  Reab,  4  Mass.  471 ;  Dwelly 

V.  Blyth,  7  EL  &  BL  47 ;  WilUams  v.  Dwelly,  46  Me.  377 ;  Burnside  v. 

v.SwanseaC.  Nav.Co.L.R.3Ex.  158;  Whitney,   21   N.   Y.   148;  Gibson  v. 

Liverpool  Borough  Bank  v.  Turner,  Jenney,    15    Mass.    205 ;    WUbur    r. 

2  De  G.  F.  &  J.  502 ;  Great  Central  Crane,  13  Pick.  284 ;  Bailey  v.  Bryan, 


EEPEALING   ACTS.  183 

"the  common  law  will  not  be  presumed  from  doubtful  statu- 
tory provisions ;  the  presumption  is  that  no  such  change  is  in- 
tended unless  the  statute  is  explicit  and  clear  in  that  direction.' 
The  common  law  will  be  held  no  further  abrogated  than  the 
clear  import  of  the  language  used  in  the  statute  requires.-  A 
statute  providing  a  remedy  for  an  illegal  tax  was  held  not  em- 
braced in  a  general  repeal  of  all  laws  relating  to  assessments 
in  an  act  prescribing  and  regulating  the  method  of  assessing 
taxes." 

§  140.  Repealing  etfect  of  affirmative  statutes  conferriug 
power  and  regulating  its  exercise. —  In  organizing  the  powers 
of  government  there  is  a  definite  and  precise  scheme  or  plan, 
and  a  unity  and  singleness  of  means  employed  to  carry  it  into 
effect.  There  is  but  one  chief  magistrate,  one  legislature,  one 
judiciary.  There  is  but  one  revenue  system,  one  police  system. 
Public  duties  are  defined  and  imposed  on  officers  designated 
with  certainty,  without  duplication  or  confusion,  except  by 
inadvertence.  The  exercise  of  power  by  one  over  another 
must  be  authorized  by  law ;  its  possession  and  scope  will  be 
such  as  is  granted ;  when  granted,  if  the  mode  of  its  exercise 
be  also  prescribed,  it  must  be  followed.  In  the  grants,  and  in 
the  regulation  of  the  mode  of  exercise,  there  is  an  implied  neg- 
ative ;  an  implication  that  no  other  than  the  expressly  granted 
power  passes  by  the  grant ;  that  it  is  to  be  exercised  only  in 
the  prescribed  mode.*  Affirmative  words  may  and  often  do 
imply  a  negative,  not  only  of  what  is  not  affirmed,  but  of  what 

3  Jones  (N.  C),  357 ;  Schuyler  v.  Mer-  R.  &  Can.  Co.  pros.  v.  Commissioner, 

cer,  4  Gilm.  20 ;    Lock  v.  MiUer,  3  37  N.  J.  L.  240 ;  Rex  v.  Northleach  & 

Stew.  &  Port  13 ;  White  v.  Johnson,  W.  Road,  5  B.  &  Ad.  978 ;  Janney  v. 

23  Miss.  68 ;  Clarke  v.  State,  id.  261 ;  Buell,  55  Ala,  408 ;  Lessee  of  Moore  v. 

WiUiams  v.  Potter,  2  Barb.  316 ;  Pey-  Vance,  1  Oliio,  1-10 ;  PhilUps  v.  Ash, 

ton  V.  Moseley,  3  T.  B.  ]\Ion.  77,  80 ;  63  Ala.  414 ;  Excelsior  Petroleum  Co. 

Street  V.  Commonwealth,  6  Watts  &S.  v.  Embury,  67  Barb.  2i)l ;  Rochester 

209 ;  Morlot  v.  Lawrence,  1  Blatch.  v.   Barnes,  26  Barb.  057 ;  Johnston's 

608.  Estate,  33  Pa,  St.  511;  Towuseud's 

1  People  V.  I'almer,  109  N.  Y.  110.  Case,  Plowd.  113;  State,  N.  Hudson 

^  Fitzgerald  v.   Quann,   109  N.  Y.  Co.  R.  R  Co.  pros.  v.  Kelley,  34  N.  J.  L. 

441.  75 ;  Evansville  v.  Bayard,  39  Ind.  450 ; 

'Shear  v.  Commissioners  of  Colmn-  North  Canal  St  Road  Case,  10  Watts, 

bia,  14  Fla,  146.  351 ;    New    Haven    v.  Whitney,    36 

*  People  V.  The  Mayor,  etc.  of  N.  Y.  Conn.  373. 
■32  Barb.  103,  121 ;  State,  the  United 


1S4:  EEPEALIXG    ACTS. 

Ii(i3  been  previously  affirmed,  and  as  strongly  as  if  expressed. . 
An  affirmative  enactment  of  a  new  rule  implies  a  negative  of 
whatever  is  not  included,  or  is  different ;  and  if  by  the  language 
used  a  thing  is  limited  to  be  done  in  a  particular  form  or  man- 
ner, it  includes  a  negative  that  it  shall  not  be  done  otherwise.^ 
An  intention  will  not  be  ascribed  to  the  law-making  power  to 
establish  conflicting  and  hostile  systems  upon  the  same  sub- 
ject, or  to  leave  in  force  provisions  of  law  by  which  the  later 
Avill  of  the  legislature  may  be  thwarted  and  overthrown.  Such 
a  result  would  render  legislation  a  useless  and  idle  ceremony, 
and  subject  the  law  to  the  reproach  of  uncertainty  and  unin- 
telligibility.2  An  act  which  required  trustees  to  collect  debts 
due  to  banks  whose  charters  were  forfeited  will  be  repealed 
by  a  later  act  which  requires  the  trustees  to  sell  all  such  debts.^ 
If  there  are  two  acts  for  the  assessment  and  collection  of  a 
tax,  and  by  one  a  notice  of  the  election  to  vote  it  must  be 
posted  ten  days,  and  pubhshed  two  weeks,  and  the  tax  is  not 
to  exceed  one  dollar  and  fifty  cents  on  the  hundred  dollars, 
and  by  the  other,  the  notice  is  to  be  posted  twenty  days,  and 
published  three  weeks,  and  the  rate  of  taxation  is  not  to  ex- 
ceed seventy  cents  on  the  hundred  dollars,  the  two  acts  are 
repugnant,  and  the  later  repeals  the  former.^  An  act  provided 
that  in  case  of  land  damages  for  laying  out  roads,  the  county 
court  should  institute  and  prosecute  in  their  names,  in  the  cir- 
cuit court,  proceedings  to  ascertain  the  just  compensation  to 
be  paid.  It  was  held  to  be  inconsistent  with  and  to  repeal  a 
prior  statute  which,  in  such  cases,  required  that  the  county 
court  award  a  writ  of  ad  quod  damnum  returnable  to  itself.® 
Two  acts  related  to  the  same  subject-matter,  the  ferries  of 
Xew  York ;  the  former  to  the  ferries  to  Long  Island,  and  the 
latter  to  all  the  ISTew  York  ferries.  They  provided  different  and 
inconsistent  modes  of  leasing  or  licensing  the  same.  The  last 
prevailed,  displacing  the  other.**  The  last  act  fixing  the  salary 
of  a  pubhc  officer  will  repeal  an  earlier  one  fixing  a  different 

1  Wells   V.  Supervisors,   103  U.  S.  <  People  v.  Burt,  43  CaL  560 ;  State 

625 ;  Cliandler  t.  Hanna,  73  Ala.  390.  v.  Newark,  28  N.  J.  L.  491 ;  Bowen  v. 

2Lyd(ly  v.   Long  Island  City,  104  Lease,  5  HiU,  221. 

N.  Y.  218.  sHerron  v.  Carson,  26  W.  Va.  62. 

3  Commercial  Bank  of  Natchez  v.  ^  People  v.  The  Mayor,  etc.  of  N.  Y. 

Chambers,  8  Sm  &  M.  9.  33  Barb.  102,  121. 


EEPEALIXG    ACTS. 


185 


salary.^  An  act  granting  tlic  exclusive  right  to  construct  and 
use  street  railroads  in  all  the  streets  of  a  city  will  repeal  a 
prior  act  of  the  same  tenor.^  If  two  independent  officers  or 
public  boards  have  each  power  to  number  and  alter  the  numbers 
of  houses  in  a  city,  for  the  purpose  of  distinguishing  them, 
the  purpose  would  be  frustrated  by  the  duplication  if  both 
could  act ;  therefore  the  power  last  granted  was  held  exclusive.' 
§  141.  New  grant  of  part  of  power  already  possessed. — 
Where  a  later  act  grants  to  an  officer  or  tribunal  a  part  of  a 
larger  power  already  possessed,  and  in  terms  which  interpreted 
by  themselves  import  a  grant  of  all  the  power  the  grantee  is 
intended  to  exercise,  it  repeals  the  prior  act  from  which  the 
larger  power  had  been  derived.  By  a  statute  of  Kentucky  of 
1799  the  county  courts  had  power  to  appoint  county  jailers  to 
serve  during  their  pleasure.  In  1802  a  provision  was  inserted 
in  an  act  to  amend  the  penal  laws,  "  that  the  several  county 
courts  respectively  shall  have  full  power  to  remove  the  keepers 
of  the  county  jails  whenever  it  shaU  appear  to  them  that  such, 
jailers  have  been  guilty  of  neglect  of  duty."  This  was  held  to 
repeal  the  prior  statute.* 


1  Pierpont  v.  Crouch,  10  Cai  315. 

2  West  End,  etc.  R.  R.  Co.  v.  Atlanta 
St  R.  R,  Co.  49  Ga.  151. 

3  Daw  V.  Metropolitan  Board,  12 
C.  B.  (N.  S.)  161. 

*  Gorham  v.  Luckett,  6  B.  Mon.  146. 
Marshall,  J.,  said  in  this  case :  "  As 
it  is  unquestionable  that  the  power 
of  the  legislatiire  to  prescribe  the 
tenure  of  the  office  of  jailer,  and  to 
regulate  the  power  of  the  county 
court  in  vacating  that  office,  con- 
tinued the  same  after  the  act  of  1799 
as  it  had  been  before ;  and  as  the  sub- 
sequent legislative  will  upon  a  subject 
thus  completely  within  its  control 
must,  if  sufficiently  indicated,  prevail 
over  that  wUl  as  previously  expressed, 
the  inquu-y  is  whether  there  is  in  the 
twentieth  section  of  the  act  of  1802 
any  sufficient  indication  of  the  legis- 
lative will  or  intention  that  thence- 
forth the  office  of  jailer  should  not  be 
held  at  the    mere   pleasure  of  the 


county  court,  but  should  only  be  sub- 
ject to  forfeitm-e  by  neglect  of  duty, 
and  be  thus  placed  on  a  footing  with 
the  great  mass  of  other  offices  in  this 
commonwealth.  Did  the  legislature 
intend  to  express  in  tliis  twentieth  sec- 
tion the  whole  power  of  removal  as 
it  shoffid  thenceforth  exist  in  the 
coimty  court?  If  they  did,  then  as 
the  power  previously  existing  is  in- 
consistent with  this  intention,  and  as 
the  proviso  conferring  the  previous 
power  is  therefore  inconsistent  with 
the  twentieth  section  of  the  act  of 
1803,  intended  to  resti'ict  that  power, 
the  proviso  comes  cleai'ly  within  the 
purview  of  tliis  twentieth  section,  and 
is  embraced  by  the  repealing  clause 
of  the  statute,  if  indeed  it  would  not 
be  repealed  by  impUcation  without  it 
"If  it  were  allowable  to  suppose 
that  the  legislature  who  framed  and 
enacted  this  twentieth  section  were 
ignorant  of  the  proviso  in  the  act  of 


ISG 


REPEALING   ACTS. 


,  "WTiile  a  statute  existed  giving  appeals  to  tlie  county  court 
from  judgments  of  justices  of  the  peace  in  all  cases  without 


1799,  and  of  the  power  thereby  vested 
in  the  county  court,  of  removing  the 
jailer  at  pleasui'e,  the  inference  would 
seem  to  be  irresistible,  that  as  tlie 
twentieth  section  of  the  act  of  1802 
was  intended  to  confer  a  new  power 
on  the  county  court,  so  it  was  in- 
tended to  express,  and  did  express, 
the  whole  power  wliich  it  was  in- 
tended that  they  should  have  over  the 
subject.  This  would  necessarily  be 
the  consti'uction  of  the  section  con- 
sidered as  conferring  a  new  power. 
And  as  every  person  ignorant  of  the 
pre-existing  law  would,  upon  reading 
tliis  section,  understand  it  as  confer- 
ring a  new  power,  so  every  such  per- 
son would  understand  it  as  conferring 
all  the  power  which  the  coiu-t  was  in- 
tended to  have.  But  supposing,  as 
one  must  do,  that  the  legislature  of 
1802  understood  well  the  pre-existing 
law  on  the  subject  to  wliich  tliis 
twentieth  section  relates,  that  they 
knew  that  the  county  court  had  al- 
ready the  power  of  removing  the 
jailer,  not  only  for  breach  of  duty, 
but  for  any  other  cause,  and  without 
cause  and  without  question,  then  the 
inquuy  comes,  for  what  pm'pose  and 
with  what  intent  do  these  legislators 
introduce  into  tliis  act  for  amending 
tlie  penal  laws,  a  section  which  pro- 
fesses to  make  a  formal  and  substan- 
tial grant  of  power,  which,  construed 
by  its  terms,  would  be  universally  un- 
derstood as  granting  a  new  power, 
and  therefore  as  expressuig  the  whole 
power  which  it  was  intended  that  the 
grantee  should  have?  Why  make  an 
express  grant  of  a  part  of  the  power, 
if  imderstanding  that  the  whole 
power,  including  this  part,  was  al- 
ready vested  in  the  court,  it  was  ia- 
tended  that  the  whole  power,  includ- 
ing tins  part,  should  still  remain? 


If  the  proviso  of  the  act  of  1799  re- 
mained in  force  after  the  enactment 
of  the  twentieth  section  of  the  act  of 
1802,  then  it  is  absolutely  certain  that 
so  much  of  that  section  as  relates  to 
the  removal  of  county  jailers  was 
utterly  without  effect,  and  might  just 
as  well  have  been  out  of  the  sectioru 
And  the  same  is  true,  if  any  part  of 
the  pre-existing  power  beyond  that 
which  is  expressed  in  tliis  twentieth 
section  continued  to  exist  after  its 
enactment.  For  to  the  extent  that 
the  i^ower  is  expressed  in  this  section, 
it  akeady  existed  and  would  have 
continued  to  exist  without  any  new 
grant,  and  the  new  grant  can  have 
no  effect  whatever,  unless  it  have  the 
effect  of  restricting  the  pre-existing 
power,  by  bringing  it  down  to  the 
measure  of  the  new  grant.  Can  we 
then  say  that  the  legislature  did  not 
intend  this  section  to  have  any  effect 
and  vu'tually  expunge  it  from  the 
statute?  Or  must  we  allow  to  it  the 
only  effect  wliich  it  can  possibly 
have,  by  imderstanding  ft  to  be,  what 
if  consti'ued  exclusively  with  refer- 
ence to  its  own  terms  it  must  be  un- 
derstood to  be,  a  substantial  grant  of 
power  expressing  all  the  power  the 
grantee  was  intended  to  have,  and 
witliholding  or  resuming  whatever 
beyond  tins  had  been  formerly 
granted?  Tliis  question  does  not  aiise 
upon  a  single  expression  or  clause  of 
a  sentence,  making  casual  reference 
to  a  subject  foreign  to  the  context, 
and  winch  may  have  been  inadvert- 
ently inti'oduced.  Here  is  an  entire 
section,  wliich  relates  to  no  other  sub- 
ject but  the  power  of  removing  the 
officers  therein  named,  and  of  which 
the  principal  subject  is  the  power  of 
removing  county  jailers,  and  the  prin- 
cipal object  (apparently  the  least)  to 


REPEALING    ACTS. 


187 


regard  to  the  amount,  other  than  upon  the  verdict  of  a  jury, 
a  new  statute  was  passed  which  allowed  appeals  from  such 


confer  or  regulate  that  power.  The 
section  must  have  been  introduced 
deliberately,  designedly  and  to  effect 
some  particular  pur25ose.  Are  we  at 
liberty  to  say  that  it  should  have  no 
effect  whatever? 

"It  is  not  a  case  of  the  re-enact- 
ment of  a  former  law  in  the  same 
words,  or  with  additional  provisions, 
nor  of  a  regrant  of  a  pre-existing 
power  to  the  same  or  a  greater  ex- 
tent. It  is  not  a  case  of  cumulative 
or  additional  power  or  right  or  rem- 
edy. Nor  does  it  come  within  the 
rule  that  a  subsequent  affirmative 
statute  does  not  repeal  a  previous  one, 
which  can  only  apply  wliere  both 
can  have  effect  Tliis  is  a  formal  and 
express  grant  of  hmited  power  to  a 
depository  which  already  had  im- 
limited  power.  And  it  can  have  no 
effect,  nor  be  ascribed  to  any  other 
purpose,  but  that  of  hmiting  the  ex- 
tent of  the  existing  power.  If  cer- 
tain provisions  of  two  statutes  are 
identical,  the  last  need  not  be  con- 
sti'ued  as  repealing,  but  merely  as 
continuing  or  re-affii-ming,  the  first, 
for  which  there  might  be  varioiis 
reasons.  So  if  a  statute  give  a  rem- 
edy, or  provide  that  certain  acts  shall 
be  sufficient  for  the  attainment  or 
security  of  certain  objects,  and  a 
subsequent  statute  declare  that  a 
part  of  the  same  remedy  or  some  of 
the  same  acts,  or  other  acts  entirely 
different,  shall  suffice  for  the  ac- 
complishment of  the  same  object, 
here  the  latter  act  does  not  necessarily 
repeal  the  former,  except  so  far  as  it 
may  be  expressed  or  implied  in  the 
former  that  the  end  shall  be  attained 
by  no  other  mode  but  that  which  it 
prescribes.  If  there  be  no  such  re- 
sti  iction  in  the  first,  there  is  no  con- 
ilict  between  them.     Both  may  stand 


together  ^\  ith  full  effect  and  the  pro- 
visions of  either  may  be  pureued. 

"But  if  a  subsequent  statute  re- 
quires the  same,  and  also  more  tliau 
a  former  statute  had  made  sufficient 
this  is  in  effect  a  repeal  of  so  much 
of  the  former  statute  as  declares  the 
sufficiency  of  what  it  prescribes.  And 
if  the  last  act  professes,  or  manifestly 
intends,  to  regulate  the  whole  subject 
to  which  it  relates,  it  necessarily 
supersedes  and  repeals  all  former 
acts,  so  far  as  it  differs  from  them  in 
its  prescriptions.  The  gi-eat  object 
then,  is  to  ascertain  the  true  inter- 
pretation of  the  last  act.  That  being 
ascertained,  the  necessary  conse- 
quence is,  that  the  legislative  inten- 
tion thus  deduced  from  it  must  pre- 
vail over  any  prior  inconsistent  in- 
tention to  be  deduced  from  a  previoiis 
act 

"Since,  then,  the  t^ventietli  section 
of  the  act  of  1802,  interpreted  accord- 
ing to  its  o-mi  terms,  unports  a  sub- 
stantial gi-ant  of  power,  and  of  all  the 
power  that  the  coimty  courts  were 
intended  to  have  on  the  subject,  and 
since  it  would  be  viseless  and  without 
effect,  imless  thus  understood  as 
regulating  the  whole  subject  of  the 
removal  of  jailers  by  the  coimtj' 
com-ts,  we  feel  boimd  to  give  to  it 
this  interpretation ;  and,  therefore,  to 
conclude  that,  after  that  act  took 
effect,  the  county  com-ts  had  no  other 
power  of  removing  jailers  but  that 
wliich  the  twentieth  section  conf  ei-s,  of 
removing  them  whenever  it  shall  ap- 
pear- to  the  court  that  such  jailers 
have  been  gaiilty  of  a  neglect  of  duty. 
If  tliis  twentieth  section  had  been  the 
fu-st  and  only  enactment  on  the  sub- 
ject aU  must  have  concurred  in  the 
conclusion  tliat  it  was  intended  to 
regulate  the  whole  subject  and  that 


ISS 


EErEALIXG    ACTS. 


judgments  wlien  tliey  exceeded  $5.  It  was  held  a  repeal  of 
the  former  statute;  for  otherwise  there  would  be  imputed 
to  the  legislature  the  folly  of  enacting  a  statute  without  pur- 
pose, and  which  leaves  the  law  precisely  as  it  stood  before.' 
By  an  act  of  17Y6,  adopted  by  Kentucky  from  Yu'ginia,  it  wa& 
provided  that  "  a  person  residing  in  any  other  country,  for 
passing  any  lands  and  tenements  in  this  commonwealth  by 
deed,  shall  acknowledge  or  prove  the  same  before  "  the  mayor 
or  chief  magistrate  of  the  city  or  corporation  wherein  or  near 
to  which  he  resides.  But  where  there  was  no  mayor  or  other 
chief  magistrate  within  the  county,  then  a  certificate  under 
the  hands  and  seals  of  two  justices  or  magistrates  of  the 
county,  that  the  proof  or  acknowledgment  has  been  made 
before  them,  should  be  sufiicient.  And  "  where  any  person  mak- 
ing such  conveyance  shall  be  d^feme  covert,  her  interest  in  any 


it  gi-anted  all  the  power  which  the 
court  was  intended  to  have.  The 
difficulty,  or  rather  the  embaiTass- 
ment,  ki  tlie  case,  arises  from  the 
fact  that  a  previous  law  had  given  to 
the  same  gi-antee  unlimited  power  on 
the  same  subject,  and  that  tliis  twen- 
tieth section  makes  no  reference  to  the 
previous  law,  and  contains  no  express 
words  of  restiuction  or  change,  but, 
gi-anting  an  express  and  limited 
power,  is  framed  as  if  it  were  the  fu-st 
and  only  act  on  the  subject.  But  do 
not  these  circumstances  indicate  that 
it  is  to  be  construed  as  if  it  were  the 
only  act  on  the  subject?  Or  shaU  the 
iirst  act,  wliich  is  inferior  in  authority 
so  far  as  they  conflict,  so  far  affect 
the  construction  of  the  last  as  to 
deprive  it  of  all  effect?  We  say 
the  last  act  must  have  effect  ac- 
cording to  its  terms  and  its  obvious 
intent  And  as  both  cannot  have  full 
operation  according  to  their  terms 
and  intent,  the  first  and  not  the  last 
act  must  yield.  If  it  could  be  sujj- 
posed  to  have  been  a  matter  of  doubt 
whether,  under  the  act  of  1799,  the 
count}'  coiu't  had  power  to  remove 
the  jailers  for  neglect  of  dutj',  or  if 


any  motive  could  be  assigned  for  in- 
troducing a  sei^arate  section  expressly 
granting  tliis  power,  except  the  pur- 
pose of  expressing  the  whole  power 
which  the  courts  were  to  have,  then 
the  basis  of  the  construction  wliich 
we  have  assumed  would  be  greatly 
weakened,  if  not  desti'oyed.  But 
we  do  not  perceive  that  any  other 
plausible  motive  can  be  assigned. 
And  as,  notwitlistanding  the  act  of 
1799,  it  was  entirely  within  the  legis- 
lative power  to  withdi'aw,  reti'act  or 
modify  the  power  of  removal  thereby 
given  to  the  county  com'ts,  and  the 
courts  had  no  right  of  resistance  or  re- 
fusal, we  regard  the  subsequent  grant 
of  a  more  hmited  power,  advisedly 
and  formally  made,  as  implying  the 
resumption  of  the  old  grant,  and  a 
restriction  of  the  power  according  to 
the  terms  of  the  new  one,  as  by  the 
acceptance  of  a  new  lease  during  a 
subsisting  term,  the  rights  of  the  ten- 
ant are  governed  by  the  terms  of  the 
new  grant." 

1  Cui-tis  V.  Gill,  34  Conn.  49 ;  Par- 
rott  V.  Stevens,  37  Conn.  93.  See 
United  States  v.  Ten  Thousand  Ci- 
gars, 1  Woolw.  123. 


REPEALING    ACTS. 


18y 


lands  or  tenements  should  not  pass  thereby  unless  she  person- 
ally acknowledge  the  same  before  such  mayor  or  chief  magis- 
trate, or  before  two  justices  or  magistrates  as  aforesaid."  By 
an  act  passed  in  17S5,  entitled  "  An  act  for  regulating  convey- 
ances," it  was  provided  that  "  when  husband  and  wife  shall 
have  sealed  and  delivered  a  writing  purporting  to  be  a  con- 
veyance of  any  estate  or  interest,  if  she  ai^pear  in  court  and 
being  examined  privily  and  apart  from  her  husband,  by  one 
of  the  judges  thereof,  etc.,  or  if  before  two  justices  of  the 
peace  of  that  county  in  which  she  dwells,  who  may  be  em- 
powered by  commission,  to  be  issued  by  the  clerk  of  the  court 
vrherein  the  writing  ought  to  be  recorded,"  etc.,  it  shall  be  suffi- 
cient to  convey  her  estate.  The  court,  by  McLean,  J.,  said : 
"  By  the  act  of  1776  the  acknowledgment  and  privy  examina- 
tion of  a  feme  covert  were  required  to  be  made  before  the 
mayor  or  other  chief  magistrate,  or  before  two  justices  or 
magistrates  of  the  town  or  place  where  she  shall  reside.  The 
acknowledgment  before  two  justices  is  retained  in  the  act  of 
1785  with  this  additional  requisite,  that  the  justices  shall  be 
commissioned,  as  provided,  to  perform  this  duty.  This  neces- 
sarily repeals  that  part  of  the  prior  act  which  authorized  the 
acknowledgment  to  be  taken  before  two  justices  without  being 
commissioned.  The  latter  act  is  in  this  regard  repugnant 
to  the  former.  The  provisions  cannot  stand  together,  as  the 
latter  act  superadds  an  essential  qualification  of  the  justices 
not  required  by  the  former. 

"  But  the  important  question  is  whether,  as  the  act  of  1785 
made  no  provision  authorizing  a  mayor  of  a  city  to  take  the 
acknowledgment  of  a  feme  covert^  that  provision  in  the  act 
of  1776  is  repealed  by  it.  In  this  respect  it  is  clear  there  is 
no  repugnancy  between  the  two  acts.  The  two  provisions 
may  well  stand  together;  the  latter  is  cumulative  to  the 
former."  ^ 

§  142.  llepealiug  eifect  of  new  statutes  cliaiiging  criminal 
laws. —  Penal  statutes  include  the  definition  of  offenses,  and 
of  punishments,  not  necessarily  in  the  same  act ;  but  the  defini- 
tion of  the  ofCense  and  the  prescription  of  the  penalty  are 

1  Daviess  v.  Fairbaim,  3  How.  636.  See  S^vann  v.  Buck,  40  Miss.  268-307; 
Gibbons  v.  Brittenum,  56  id.  232. 


190 


EEPEALING   ACTS. 


SO  allied  tliat  legislation  affecting  one  may  affect  the  otlier.^ 
Where  a  statute  prescribes  a  new  punishment  for  a  common- 
law  offense,  it  is  still  a  common-law  offense,^  and  only  the 
punishment  is  changed."  But  where  a  common-laAV  offense  is 
defined  and  enacted  by  statute,  which  also  prescribes  the  pen- 
alty, the  common  law  is  repealed  and  the  offense  is  thus  made 
a  statutory  offense.*  A  change  in  the  elements  of  the  offense 
or  in  the  elements  or  amount  of  the  penalty  will  destroy  the 
identity  of  the  offense  and  effect  a  repeal  to  the  extent  of  the 
repugnance.'^  When  the  new  law  uses  the  same  words  as  the 
old,  the  second  is  declaratory  and  not  repugnant,  and  there 
is  no  repeal.''  A  re-enactment  has  been  held  a  continuation 
though  the  punishment  by  imprisonment  is  reduced.'  A 
statute  fixing  a  penalty  for  a  wilful  and  malicious  trespass 
will  not  repeal  an  existing  law  fixing  a  different  penalty  for  a 
wilful  trespass.  The  elements  of  the  offense  defined  in  one 
section  are  not  the  same  as  those  which  constitute  the  offense 
in  the  other ;  the  last  act  is  cumulative ;  the  two  can  stand 


1  Commonwealth  v.  Kimball,  21 
Pick.  373 ;  Commonwealth  v.  McDon- 
ough,  13  Allen,  581;  Flaherty  v. 
Thomas,  12  AUen,  428. 

2WiUiams  v.  Reg.  7  Q.  B.  250; 
McCann  v.  State,  13  Sm.  &  M.  471 ; 
State  V.  Daley,  29  Conn.  272,  276. 

3  King  V.  Bridges,  8  East,  53. 

*  Commonwealth  v.  Marshall,  11 
Pick.  350 ;  Commonwealth  v.  Cooley, 
10  Pick.  37 ;  State  v.  Boogher,  71  Mo. 
631. 

5NoiTis  V.  Crocker,  13  How.  429; 
DowdeU  V.  State,  58  Ind.  333 ;  State 
V.  Smith,  44  Tex.  443 ;  State  v.  Whit- 
worth,  8  Port  (Ala.)  434;  Rex  v. 
Cator,  4  Burr.  2026 ;  King  v.  Davis,  1 
Leach's  Cas.  271 ;  United  States  v. 
Tynen,  11  WaU.  88 ;  Gorman  v.  Ham- 
mond, 28  Ga,  85 ;  Mullen  v.  People, 
31  III  444 ;  :NncheU  v.  Brown,  1  E.  & 
E.  267 ;  United  States  v.  Case  of  Pen- 
cils, 1  Paine,  406 ;  People  v.  Bussell, 
59  Mich.  104 ;  State  v.  Horsey,  14  Ind. 
3  85 ;  State  v.  Pierce,  id.  302 ;  Leigh- 
ton  V.  Walker,  9  N.  H.  59 ;  Nichols  v. 


Squire,  5  Pick.  168 ;  State  v.  Grady, 
34  Conn.  118 ;  State  v.  Daley,  29  id. 
272 ;  Commonwealth  v.  Gardner,  11 
Gray,  438 ;  State  v.  Massey,  103  N.  C. 
356 ;  Turner  V.  State,  40  Ala.  21,  Lind- 
zey  V.  State,  65  Miss.  542 ;  Miles  v. 
State,  40  Ala.  39 ;  BuckaUew  v.  Acker- 
man,  8  N.  J.  L.  48 ;  People  v.  Tisdale,  57 
Cal.  104 ;  Reg.  v.  Youle,  6  H.  &  N.  753 ; 
State  V.  Hamblui,  4  Rich.  (N.  S.)  1 ; 
Sherman  v.  State,  17  Fla.  888;  Pit- 
man V.  Commonwealth,  2  Rob.  (Va.) 
813 ;  Magruder  v.  State,  40  Ala,  347 ; 
Smith  V.  State,  1  Stew.  506 ;  WaU  v. 
State,  23  Ind.  150 ;  State  v.  Craig,  id. 
185 ;  Drew  County  v.  Bennett,  43  Ark. 
304. 

6  Commonwealth  v.  Gardner,  11 
Gray  438 ;  State  v.  Gumber,  37  Wis. 
298.  See  Hirschbm-g  v.  People,  6  Colo. 
145. 

^  State  v.  Wish,  15  Neb.  448.  See 
Nichols  V.  Squu-e,  5  Pick.  168;  Gor- 
man V.  Hammond,  28  Ga.  85 ;  State, 
V.  Whitworth,  8  Port.  434 ;  Smith  v. 
State,  1  Stew.  506;  Carter  v.  Hawley, 


REPEALING   ACTS.  191 

together.'  A  statute  establishing  and  defining  two  degrees  of 
murder  to  be  found  by  the  jurj^,  one  punishable  according  to 
the  existing  law  by  death,  and  the  other  by  a  milder  punish- 
ment, imprisonment  for  life,  w^ill  not  have  the  eifect  to  repeal 
the  law  against  murder  which  was  punishable  by  death  with 
out  distinction  of  deOTees.^ 

§  143.  Where  a  later  statute  contains  no  reference  to  the 
former  statute,  and  defines  an  offense  containing  some  of  the 
elements  constituting  the  offense  defined  in  such  former  stat- 
ute and  other  elements,  it  is  a  new  and  substantive  offense. 
The  two  statutes  can  stand  together  and  there  is  no  repeal.' 
So  »f  the  later  statute  prescribe  a  punishment  for  acts  with 
only  a  part  of  the  ingredients  or  incidents  essential  to  consti- 
tute the  offense  defined  in  a  former  statute.*  But  if  the  same 
offense,  identified  by  name  or  otherwise,  is  altered  in  degrees 
or  incidents,  or  if  a  felony  is  changed  to  a  misdemeanor,  or 
vice  mrsa^  the  statute  making  such  changes  has  the  effect  to 
repeal  the  former  statute.  Two  penal  provisions,  passed  in 
one  act  or  at  different  times,  may  co-exist  though  covering  in 
part  the  same  acts,  and  applicable  in  part  to  the  same  persons, 
and  prescribing  different  penalties.  One  will  not  render  the 
other  nugatory  contrary  to  the  legislative  intent.^ 

Where  a  new  law  covers  the  whole  subject-matter  of  an  old 
one,  adds  new  offenses,  and  prescribes  different  penalties  for 
those  enumerated  in  the  old  law,  then  such  former  law  is  re- 
Wright  (Oliio),  74 ;  Leightonv.  Walker  license  is  not  repugnant  to  and  there- 
9  N.  H.  59 ;  Flaherty  v.  Thomas,  12  fore  not  repealed  by  a  subsequent  act 
Allen,  428 ;  Blackwell  v.  State,  45  imposing  taxes  for  revenue  purposes 
Ark.  90.  on  the  manufacturers  and  venders 

1  State  V.  Alexander,  14  Rich.  247 ;  of  fireworks.  Homer  v.  Common- 
BlackweU  v.  State,  45  Ark.  90.  See  wealth,  106  Pa,  St.  221 ;  S.  C.  51  Am. 
Coghill  V.  State,  37  Ind.  111.  R.   521 ;    Youngblood  v.   Sexton,   33 

-Commonwealth  v.  Gardner,  11  Mich.  406,  425.  See  State  v.  Dimcan, 
Gray,  438.  16  Lea,  79. 

3  State  V.  Alexander,  14  Rich.  247 ;  5  R.  v.  Davis,  1  Leach,  271 ;  People 
State  V.  Benjamin,  2  Oregon,  125 ;  v.  Tisdale,  57  Cal.  104 ;  Mongeon  v. 
Bennett  v.  State,  2  Yerg.  472 ;  Rex  v.  People,  55  N.  Y.  613 ;  Hayes  v.  State, 
Downs,  3  T.  R,  569 ;  Pons  v.  State,  49  55  Ind.  99 ;  IMicheU  v.  Brown,  1  E. 
Miss.  1.  &  E.  267 ;  Sherman  v.  State,  17  Fla. 

4  Coghill  V.  State,  37  Ind.  111.    A    888. 

statute  iniposmg  a  penalty  on  the        ^  Davies  v.  Harvey,  L.  R,  9  Q.  B.  433 ; 
sale   of   fireworks    without    special    The  Industry,  1  GalL  114, 


192  KErEALIXG    ACTS. 

pealed  b}^  implication.'  The  effect  would  probably  be  tbat  of 
revision  and  repeal,  though  no  new  offenses  were  added ;  it  is 
enough  that  the  new  statute  embraces  all  the  provisions  of  pre- 
vious statutes  on  the  same  subject,  which  are  intended  to  have 
force.-  The  revision  of  criminal  laws  or  new  legislation  which 
manifestly  is  intended  to  furnish  the  only  rule  that  shall  govern 
has  the  same  effect  as  hke  legislation  has  on  other  subjects.^  In 
each  case  it  is  a  question  of  legislative  intent.  The  question  ever 
is,  Did  the  legislature  intend  to  repeal  the  former  law,  or  was 
the  new  law  intended  to  be  merely  cumulative  ?  *  In  Ee  Baker,' 
Bramwell,  B.,  said :  "  When  a  statute  directs  something  to  be 
done  in  a  certain  event,  and  another  law  is  made  w-hich  ap- 
points something  else  to  be  done,  not  contradictory  but  more 
comprehensive,  and  including  the  former,  I  cannot  help  think- 
ing that  the  first  act  is  gone." 

Where,  however,  the  new  statute  contains  no  reference  for 
repeal  or  otherwise  to  existing  statutes,  and  defines  an  offense 
made  punishable  by  a  prior  law,  and  imposes  a  new  punish- 
ment, it  will  not  repeal  such  prior  law  as  to  existing  cases ;  for, 
as  the  new  law  will  only  operate  prospectively,  there  is  as  to 
offenses  akeady  committed  no  conflict.  The  prior  law  will 
operate  as  to  all  offenses  against  it  committed  up  to  the  time 
that  the  new  law  goes  into  effect,  and  the  trial  may  be  had 
and  judgment  pronounced  afterwards.^  The  same  rule  would 
govern  where  a  cumulative  penalty  is  prescribed.'^ 

1  Norris  v.  Crocker,  13  How.  429 ;  *  Sifred  v.  Commonwealth,  104  Pa, 
Dowdell  V.  State,  58  Ind.  333 ;  Johns  St.  179 ;  United  States  v.  Case  of  Pen< 
V.  State,  78  id.  332 ;  Michell  v.  cils,  1  Paine,  400 ;  Osborn,  Ex  parte. 
Brown,  1  E.  &  E.  267.  24  Ark.  479 ;  Coats  t.  Hill,  41  id.  149. 

2  Commonwealth    v.    Kelliher,   12  » 2  H.  &  N.  219. 

AUen,  480.  See  Nusser  v.  Common-  6  ]Mongeon  v.  People,  55  N.  Y.  613 ; 
wealth,  25  Pa.  St.  126.  A  statute  People  v.  Hobson,  48  Mich.  27 ;  Pit- 
fixed  a  tax  on  the  exercise  of  a  cer-  man  v.  Comrnonwealtli,  2  Rob,  (Va.) 
tain  privilege  and  a  penalty  for  exer-  813 ;  Mitchell  v.  Duncan,  7  Fla.  13 ; 
cising  it  without  a  license ;  a  subse-  Miles  v.  State,  40  Ala.  39 ;  Commou- 
quent  act  changed  the  tax  and  wealth  v.  Pegram,  1  Leigh,  569 ;  Com- 
provided  a  remedy  for  its  collection,  monwealth  v.  Wyatt,  6  Rand.  694. 
but  was  silent  as  to  the  penalty ;  See  Rex  v.  McKenzie,  R.  &  R.  C.  C. 
held,  that  there  was  no  such  incom-  429. 

patibihty  as  to  cause  a  repeal    Cate  ^  Shoemaker  v.  State,  20  N.  J.  L. 

V.  State,  3  Sneed,  120.  153. 

'  United  States  v.  Tynen,  11  Wall 
88 ;  State  v.  Watts,  23  Ai-k.  304. 


EEPEALINO   ACTS.  193 

A  statute  providing  for  or  defining  an  offense  created  by  a 
previous  statute,  and  providing  a  materially  different  punish- 
ment, repeals  the  former  act.'  If  the  punishment  prescribed 
by  statute  for  larceny  of  any  sum  above  $50  be  imprisonment 
in  the  states  prison  not  excecdmg  five  years,  and  subsequently 
the  legislature  enact  a  severer  punishment  for  larceny  of  an 
amount  exceeding  $2,000,  the  law  is  not  thereby  changed  as 
to  larcenies  of  amounts  below  the  latter  sum.-  The  repug- 
nance extends  no  further,  and  is  the  limit  of  repeal,  by  impli- 
cation.' So  where  a  statute  imposed  a  certain  fine  and  a 
minimum  term  of  imprisonment,  it  was  held  not  repealed  by 
a  subsequent  statute  which  gave  the  court  a  discretion  on 
proof  to  mitigate  this  punishment.  The  court  say :  "  It  does 
not  change  any  previously  prescribed  penalty,  nor  does  it  sub- 
stitute a  new  or  different  kind  of  punishment  in  the  place  of 
that  which  the  former  statutes  had  affixed  to  certain  classes 
of  offenses.  The  effect  of  the  statute  was  merely  to  vest 
in  the  court  a  discretion  by  the  exercise  of  which  they  were 
authorized  to  mitigate  the  sentence  to  which  the  offender  was 
liable,  by  dispensing  with  a  portion  of  the  prescribed  punish- 
ment. The  extent  of  the  repeal  of  previous  statutes  is  then 
only  this :  That,  in  a  certain  class  of  cases,  instead  of  a  fixed 
or  inflexible  rule  of  punishment  which  could  not  be  modified 
or  varied,  the  court  has  authority  to  substitute  a  milder  sen- 
tence. Clearly  such  a  statute  is  not  a  violation  of  any  right 
or  privilege  of  an  accused  party,  nor  does  it  render  the  class 
of  offenses  to  which  it  relates,  and  which  were  committed 
prior  to  its  enactment,  dispunishable.  It  does  not  inflict  any 
greater  punishment  than  was  before  prescribed;  it  is  not, 
therefore,  ex  post  facto;  it  only  authorizes  a  mitigation  of  a  pen- 

'  State  V.Smith,  44  Tex.  443;  Gor-  2  State  v.  Grady,    34    Conn.    118; 

man  v.  Hammond.  28  Ga,  85 ;   State  State  v.  IMiller,  58  Ind.  399. 

V.  Horsey,  14  Ind.  185 ;  State  v.  Pierce,  *Bj  a.  statute  the  punishment  for 

14  Ind.  803 ;  Mullen  v.  People,  31  111.  stealing  a  cow    was  a  fine  of  ten 

444 ;    Michell    v.   Brown,  1   R  &  K  pounds,  or,  if  the  defendant  is  unable 

267 ;  Robinson  v.  Emerson,  4  H.  &  C.  to  pay,  then  whipping ;    held,  that 

355 ;  Cole  v.  Coulton,  2  R  &  E.  695 ;  the  punishment,  after  whipping  was 

Henderson  v.  Sherborne,  2  M.  &  W.  abolished,    ^vas    the    fine.    State   v. 

236 ;    Att'y-Gen'l  v.  Lockwood,  9  M.  Hamblin,  4  Rich.  (N.  S.)  1. 
&  W.  391. 
13 


194  EEPEALENG    ACTS. 

alty;  it  is  therefore  an  act  of  clemency  which  violates  n<r 
right,'  but  grants  a  privilege  to  a  convicted  party."  ^ 

§  m.  It  has  been  held  that  a  subsequent  act  may  provide 
an  alternative  punishment  in  mitigation  of  that  previously  pre 
scriloed  without  heing  ex  post  facto.^  A  statute  imposing  for 
an  offense  the  penalty  of  imprisonment  in  the  house  of  cor- 
rection in  the  county  where  the  offense  was  committed  was 
held  not  repealed  by  a  subsequent  statute  providing  that  the 
court  in  its  discretion  may  commit  the  person  under  sentence 
to  the  house  of  correction  in  any  county  in  the  state  in  the 
same  manner  as  he  might  be  to  the  county  where  the  court  is 
holden,  and  that  all  inconsistent  statutes  are  repealed.^  The 
court  said:  "The  change  is  not  in  the  nature  of  the  penalty 
or  its  degree,  but  only  in  the  locality  where  it  may  be  inflicted. 
The  essential  rights  of  a  person  convicted  are  not  materially 
affected,  nor  is  the  punishment  aggravated  by  an  imprison- 
ment in  one  county  rather  than  another.  There  would  be 
great  force  in  the  argument  [that  there  is  an  implied  repeal] 
if  the  new  statute  had  authorized  the  imprisonment  to  be  in- 
flicted in  a  penal  institution  designed  or  appropriated  for  the 
punishment  of  offenses  of  a  higher  or  more  aggravated  nature 
than  those  punishable  in  the  house  of  correction,  although  the 
term  of  imprisonment  had  remained  unchanged.  .  .  .  But 
under  the  statutes  of  this  commonwealth  the  several  houses  of 
correction  in  the  different  counties  of  the  commonwealth  are 
places  designated  and  used  for  the  punishment  of  offenses  of 
the  same  grade  and  degree ;  they  are  all  subject  to  the  same 
rule  of  government ;  the  persons  committed  to  them  are  under 
substantially  the  same  discipline,  and  are  entitled  to  the  same 
rights  and  privileges.  In  legal  contemplation,  a  commitment 
to  a  house  of  correction  in  one  county  for  a  specific  term  can- 
not be  regarded  as  a  higher  or  lesser  punishment  than  a  com- 
mitment to  a  house  of  correction  in  another  county  for  the 
same  period  of  time.    The  essential  elements  of  the  penalty  are 

iDolan  V.  Tliomas,  13  Allen,  421 ;     Dall.   386;   Walker  v.   State,  7  Tex. 
Commonwealth  v.  Wyman,  12  Cush.    App.  245. 

237 ;  Commonwealth  v.  Gardner,  11  2  Turner  v.  State,  40  Ala,  21 ;  Greer 
Gray,  445 ;  Commonwealth  v.  Mc-  v.  State,  22  Tex.  588.  But  see  post, 
Keimey,  14  id,  1 ;   Calder  v.   Bull,  8    §480. 

3  Carter  v.  Burt,  12  Allen,  424 


REPEALING   ACTS.  195 

the  same  in  either  case."  A  change  of  procedure  sometimes 
has  been  emphasized  as  aiding  the  inference  of  repeal.^  Wliere 
a  statute  prohibited  an  act  under  a  penalty  to  be  enforced  by 
indictment,  and  a  subsequent  statute  gave  a  qui  tarn  action 
for  such  penalty,  the  latter  was  held  merely  cumulative,  and 
did  not  repeal  the  remedy  given  by  the  former  act."'' 

§  145.  Statutes  granting  larger  or  diherent  power  or 
riglit. —  A  new  statute  which  affirmatively  grants  a  larger 
jurisdiction  or  power,  or  right,  repeals  any  prior  statute  by 
which  a  power,  jurisdiction  or  right  less  ample  or  absolute  had 
been  granted.^  If  the  exercise  of  a  power  granted  by  a  legis- 
lative act  may  include  going  beyond  limits  fixed  by  a  prior 
statute,  such  limitation  is  impliedly  removed,  at  least  so  far  as 
it  conflicts  with  the  doing  of  that  which  is  subsequently  au- 
thorized. Thus,  a  power  given  to  a  municipal  corporation  to 
create  a  debt  and  provide  for  its  payment  empowered  it  to 
provide  for  the  payment  by  taxation  according  to  the  exigency 
of  the  contract,  though  taxation  for  that  purpose  would  exceed 
a  limitation  in  the  general  law  in  force  as  to  the  annual  rate 
of  taxation.^  An  English  statute  authorized  the  removal  of 
poor  persons  hkely  to  become  chargeable.  The  power  was 
given  to  two  justices,  one  to  be  of  the  quorum.  A  later  statute 
recited  that  act  and  repealed  the  provision  for  removal  on  the 
probabiUty  of  their  becoming  chargeable,  and  enacted  that  a 
removal  might  be  made  of  such  persons  after  they  had  become 
chargeable  to  the  parish,  by  two  justices  of  the  peace,  without 
mention  of  the  quorum.  It  was  held  that  the  requirement  that 
one  of  the  justices  be  of  the  quorum^  contained  in  the  previous 
act,  was  repealed  by  implication.'^  "Where  the  later  statute 
merely  extends  the  power  or  right  to  new  subjects,  though 
without  mentioning  the  limitations  applicable  to  the  subjects 
to  which  the  early  law  referred,  they  may,  by  construction,  be 

iMichell  V.  Brown,  1  E.  &  E.  267 ;  Jersey  City  v.  Jersey  City,  etc.  R.  R 

Nusser  V.  Commonwealth,  25  Pa.  St  Co.  20  N.  J.  Eq.  360 ;  Commissioners 

126.  of  Knox  Co.  v.  McComb,  19  Ohio  St. 

2  Bush  V.  Republic,  1  Tex.  455.  320;    McRoberts    v,    Washburne,  10 

3  Farley  v.  De  Waters.  2  Daly,  192 ;  ]\Iinn.  23. 

Regina  v.  Harden,  2  Ellis  &  B.  188 ;  ■*  Commonwealth  v.  Commissioners 

Schneider  v.   Staples,   G6  Wis.   167 ;  of  Allegheny  Co.  40  Pa.  St,  348. 

Board    of    Commissioners    v.   Potts,  *  Regina  v,  Llangian,  4  B.  &  S.  349. 
SheriflF,   10  Ind.   286 ;   Mayor,  etc.  of 


196  EEPEALING   ACTS. 

held  to  attach  to  the  new  subjects,  when  found  consonant  to 
the  manifest  intention  of  the  legislature,  or  when  such  con- 
struction accords  with  its  uniform  policy.^  By  the  Eevised 
Statutes  of  Xew  York,^  an  incorporated  academy  could  take 
and  hold  by  gift,  grant  or  devise  real  and  personal  property, 
the  clear  yearly  income  or  revenue  of  which  did  not  exceed 
the  value  of  $4,000.  By  subsequent  acts  trusts  were  author- 
ized to  be  created  by  grants,  devises  and  bequests  of  i3roperty 
to  any  incorporated  college  or  other  literary  incorporated  in- 
stitution for  specific  purposes  of  support  of  liberal  education. 
By  the  terms  of  these  acts  no  limit  in  amount  or  value  of 
property  which  can  thus  be  given  in  trust  is  prescribed.  The 
court  say :  "  But  these  statutes  are  in  no  sense  repugnant  to 
the  general  law  of  the  state,  limiting  and  restricting  the 
amount  and  value  of  property  which  can  bo  taken  and  held 
by  literary  and  educational  corporations,  and  the  general  laws 
are  in  harmony  with  the  general  policy  of  the  state,  which  has 
been  uniform  and  consistent  so  far  as  such  policy  is  indicated 
by  legislation  in  relation  to  gifts  in  mortmain  and  the  power 
of  corporations  to  take  and  hold  property.  Special  trusts 
were  authorized  to  be  created  by  the  acts  of  1840  and  1841,  in 
furtherance  of  the  general  objects  of  the  institutions  named ; 
but  such  trusts  can  be  created  and  full  effect  given  to  the  acts 
within  the  limits  imposed  by  the  general  laws  upon  the  power 
of  the  corporations  to  acquire  and  hold  property.  The  gen- 
eral laws  of  restraint  and  those  particular  acts  permitting 
special  trusts  may  stand  together.  .  .  .  There  being  no 
express  repeal  of  the  general  provision  of  the  law,  or  repudia- 
tion of  the  uniform  policy  of  the  state,  the  intent  of  the  legis- 
lature to  do  either  cannot  be  unphed.  T'nlimited  trusts  of 
this  character  might  become  an  unmitigated  evil,  and  no  con- 
tingent good  could  compensate  for  the  actual  evil  attendant 
upon  withdrawing  property  from  general  use  and  placing  it  in 
dead  hands.  Judges  have  given  the  widest  possible  scope  to 
statutes  in  restraint  of  the  disposal  of  property  in  mortmain, 
and  have  been  astute  in  their  arguments  for  the  apj)lication  of 
such  statutes  to  cases  as  they  arose.'     Tlie  courts  ought  not  to 

1  Chamberlain  v.  Chamberlain,  43        '  Per   Gibson,  Ch.  J.     Hillyard  v. 
N.  Y.  424.  MiUer,  10  Pa.  St  326. 

2 1  R,  S.  462,  §  42. 


EEPEALING   ACTS.  197 

impute  an  intent  to  the  legislature  not  clearly  expressed,  in 
direct  hostility  to  the  traditions  and  policy  of  the  past.  The 
institute  can  '  take  and  hold '  property  within  the  limits  pre- 
scribed, but  can  neither  take  nor  hold  in  excess  of  that  limit ; 
effect  will  not  be  given  to  a  transgrcssive  bequest  in  excess  of 
the  amount  authorized." 

A  local  act  directed  the  trustees  of  a  turnpike  to  keep  their 
accounts  and  proceedings  in  books  to  which  all  persons  should 
have  access.  A  subsequent  general  turnpike  act  recites  the 
importance  of  a  uniform  system  to  be  adhered  to  in  the  laws 
relating  to  turnpikes,  and  enacted  that  former  laws  should  con- 
tinue in  force,  except  as  they  were  thereby  varied  or  repealed ; 
that  the  trustees  should  keep  their  accounts  in  a  book  to  be 
open  to  the  inspection  of  the  trustees  and  creditors  of  the  tolls, 
and  that  the  book  of  their  proceedings  should  be  open  to  the 
inspection  of  the  trustees.  It  was  held  that  the  provision  in  the 
local  act  giving  a  right  of  access  to  all  persons  was  repealed.^ 
Thus  it  will  be  seen  that  the  grant  by  the  legislature  of  a 
power  or  right  which  is  inconsistent  with  one  ah'eady  possessed 
wiR  repeal  or  modify  it,-  It  is  different  and  inconsistent  when 
its  exercise  is  made  to  depend  on  different  conditions,  or  it  is 
conditioned  on  different  things.^  So,  conferring  a  new  right 
will  displace  and  repeal  one  previously  granted,  where  their 
co-existence  would  be  inconvenient,  or  it  otherwise  is  justly 
inferable  that  the  legislature  intended  a  repeal.*  It  avlQ,  how- 
ever, be  deemed  cumulative  if  there  are  no  negative  words  and 
no  positive  repugnance.'^ 

§  146.  Repeal  by  radical  cliauge  of  leading  part  or  sys- 
tem.—  An  intention  to  repeal  certain  statutory  provisions  may 
be  inferred  from  radical  changes  or  abolition  of  the  leading 
parts  of  the  statute  to  which  they  were  conditions  or  ancil- 
lary. The  7  Geo,  I.,  chapter  21,  prohibited  bottomry  loans  by 
Englishmen  to  foreigners  on  foreign  ships  engaged  in  the 

1  Rex  V.  Noitlileach  &  Witney  *  Steward  v.  Greaves,  10  M.  &  W. 
Road,  5  B.  &  Ad,  978,  711 ;  O'Flaherty  v,  McDoweU,  6  H.  L. 

2  Korah  v.  Ottawa,  32  111,  131 ;  Gib-  Gas.  142 ;  Davison  v.  Farmer,  6  Ex. 
bons  V,  Brittenum,  56  Miss.  232 ;  Far-  242,  256 ;  Chapman  v,  Milvain,  5  Ex. 
ley  V.  De  Waters,  2  Daly,  192.  61, 

3  Gwinner  v,  Lehigh,  etc.  R  R.  Co.  *  Gohen  v.  Texas  Pac  R.  R,  Co.  3 
55  Pa  St  1C3.  Woods,  346. 


198  KEPEALING   ACTS. 

Indian  trade.  This  restriction  was  held  silently  repealed  by 
the  subsequent  enactments  which  put  an  end  to  the  monopoly 
of  the  East  India  Company  and  threw  its  trade  open  to  for- 
eign as  well  as  to  British  ships.^  The  common  law  and  stat- 
utory estate  by  the  curtesy  is  held  abohshed  by  the  statutes 
which  assure  to  married  women  the  possession  and  control  of 
their  separate  property  with  the  rents,  issues  and  profits,  and 
confer  power  of  disposition  by  deed  or  will.^  So  those  stat- 
utes giving  married  women  capacity  of  suing  and  being  sued 
without  the  husband  being  joined  repeal  by  impUcation  the 
statutes  which  suspend  the  statute  of  limitations  for  coverture 
as  a  disability.'' 

In  Emerson  v.  Clayton  *  the  court  say :  "  By  this  statute  a 
married  woman  must,  since  its  enactment,  be  considered  a 
feme  sole  in  regard  to  her  estate  of  every  sort  owned  by  her 
before  marriage,  or  which  she  may  acquire  during  coverture, 
in  good  faith,  from  any  person  not  her  husband,  by  descent, 
devise  or  otherwise,  together  with  the  rents,  issues,  increase 
and  profits  thereof.  .  .  .  They  designed  to  make  and  did 
make  a  radical  and  thorough  change  in  the  condition  of  a 
feme  covert.  She  is  unmarried^  so  far  as  her  property  is  con- 
cerned, and  can  deal  with  it  as  she  pleases." 

Though  such  acts  do  not  purport  to  repeal  the  exemption 
of  married  women  from  the  operation  of  Hmitation  laws, 
they  manifestly  produce  that  result  by  a  reasonable  construc- 
tion of  the  language  used  in  connection  with  the  scope,  purpose 
and  object  of  the  statute.^ 

§  147.  lusertiug  or  not  a  clause  for  repeal  of  inconsistent 
legislation. —  Afiirmative  statutes  which  contain  no  reference 

1  The  India,  Brown.  &  L.  221.  the  code  after  the  passage  of  the  act 

2  Tong  V.  Marvm,  15  Mich.  60 ;  Bil-  enabling  man-ied  women  to  sua  See 
lings  V.  Baker,  28  Barb.  343,  Clark  v.  McCann,  18  Him,  13 ;  Dun- 

3  Hay  ward  v.  Gunn,  82  IlL  385 ;  ham  v.  Sage,  52  N.  Y.  229 ;  Acker  v. 
Castner  v.  Walrod,  83  id.  171 ;  Enos  Acker,  81  N.  Y.  143 ;  Clai-ke  v.  Gib- 
V.  Buckley,  94  id.  458 ;  Geisen  v.  Heid-  bons,  83  id.  107. 

erich,  104  id.  537 ;  Brown  v.  Cousens,        *  32  IlL  493. 

51  Me.   301 ;  Cameron  v.  Smith,  50        ^  Castner  v.  Walrod,  supra;  Kibbe 

Cal  303 ;  Ong  v.  Sumner,  1  Cincin.  v.  Ditto,  93  U.  S.  674.    See  Hershy 

Sup.  Ct.  424;    Ball  v.    BuHard,    52  v.   Latham,  42  Ai-k.  305;    State   v. 

Barb,  141.  The  exemption  of  man-ied  Troutman,  72  N.   C.   551 ;    Briggs  v. 

■w^omen  in  New  York  from  the  opera-  Smith,  83  id.  306. 

tion  of  the  statute  was  re-enacted  in 


REPEALING   ACTS,  199 

to  .existing  statutes,  either  to  amend  or  repeal  them,  import 
that  the  law-maker  has  no  conscious  purpose  to  affect  them, 
unless  by  congruous  addition.  On  the  other  hand,  when  there 
is  inserted  in  a  statute  a  provision  declaring  a  repeal  of  all 
inconsistent  acts  and  parts  of  acts,  there  is  an  assumption  that 
the  new  rule  to  some  extent  is  repugnant  to  some  law  enacted 
before.  There  is  a  repeal  to  the  extent  of  any  re}jugnancy  in 
either  case,  but  no  farther.  The  latter  is  sometimes  classed 
with  exj)ress  repeals.'  It  is  to  be  supposed  that  courts  will 
be  less  inclined  against  recognizing  repugnancy  in  applying 
such  statutes,  while,  in  dealing  with  those  of  the  other  class, 
they  will,  as  principle  and  authority  requires,  be  astute  to  find 
some  reasonable  mode  of  reconciling  them  with  prior  statutes, 
so  as  to  avoid  a  repeal  by  implication.-  An  act  in  general  terms 
repealing  aU  conflicting  provisions  of  previous  acts,  it  is  said, 
wiU  have  the  effect  to  repeal  all  acts  identical  with  any  of 
those  expressly  repealed.^  The  specification  of  certain  sec- 
tions of  an  act  as  repealed  is  deemed  equivalent  to  a  declara- 
tion that  the  remaining  sections  shall  continue  in  force ;  that 
a  clear  repugnancy  will  be  necessary  to  further  extend  the 
repeal.^ 

The  re-enactment  of  some  of  the  sections  of  one  act,  in  a 
subsequent  one  providing  for  a  different  scheme,  is  not  a  re- 
peal by  implication  of  these  sections  in  the  first  act ;  nor  does 
a  provision  in  the  second  act  suspending  the  operation  of  the 
similar  sections  in  that  act  have  the  effect  to  suspend  the  oper- 
ation of  those  in  the  first  act.^  So  a  statute  which  refers  to 
and  adopts  the  provisions  of  another  statute  is  not  repealed 
by  the  subsequent  repeal  of  the  original  statute  adopted.^    A 

^Bish.  W.  Laws,  §  112a;  State  v.  implication  to  repeal  the  former  stat- 

Kelley,  34  N.  J.  L.  75,  77 ;  Common-  ute,  and  that,  in  order  to  effect  such 

wealth  V.  Chm-chill,  3  Met  118.  a  repeal,  there  must  be  a  clause  of 

-  Rex    v.    Northleach    &    Witney  repeal  in  the  repealing  statuta" 
Road,  5  B.  &  Ad.  978.  *  Crosby  v.  Patclx,  18  CaL  438 ;  State 

3  State  V.  Barrow,  80  La.  Ann.  Pt  I,  v.  Morrow,  26  Mo.  131.    See  Bum- 

657.    In  Mahoney  v.  Wriglit,  10  Irish  ham  v.  Onderdonk,  41  N.  Y.  425. 
C.  L.  (N.  S.)  420,  Lefroy,  C.  J.,  said :        »  Powei-s  v.  Shepard,  48  N.  Y.  540. 
"  It  is  settled  by  authority  that  the  re-        *>  Sika  v.  Chicago,  etc.  R  R  Ca  21 

cital  of  an  intention  merely,  in  a  sub-  Wis.  370 ;  Schwenke  v.  Union  Depot 

sequent  statute,  to  repeal  a  former  &  R.  R.  Co.  7  Colo.  512;  Regina  v. 

specific  statute,  will  not  operate  by  Stock,  3  Nev.  &  Perrj-,  420. 


200  EEPEALING   ACTS. 

Statute  providing  for  submitting  the  question  of  the  removal  of 
a  county  seat  to  a  popular  vote  at  the  April  election  was  held 
not  affected  by  a  statute  which  discontinued  such  elections  or 
postponed  them  until  October.  These  statutes  are  not  laws 
on  the  same  subject.  The  former  should  be  construed  as  fix- 
ing the  time  for  taking  the  vote,  and  would  not  be  changed  if 
the  April  elections  for  election  of  officers  were  abolished.'  A 
statute  providing  a  remedy  for  an  illegal  tax  should  not  be 
deemed  embraced  in  a  general  repeal  of  all  laws  relating  to 
assessments  in  an  act  prescribing  and  regulating  the  method  of 
assessing  taxes.^  A  general  clause  in  an  act  otherwise  uncon- 
stitutional, repealing  all  acts  and  parts  of  acts  contravening  its 
provisions,  will  have  no  effect ;  for,  being  void,  no  acts  or  parts 
of  acts  could  contravene  its  provisions.^  ]t^or  will  an  unconsti- 
tutional amendment  impliedly  repeal  the  original  act  by  rea- 
son of  conflict.* 

§  148.  Recoucilement  of  affirmative  statutes. —  The  cases 
are  very  numerous  in  w^hich  an  important  question  is  decided 
upon  the  general  principle  that  a  statute  w^ithout  negative 
words  will  not  repeal  existing  statutes,  unless  there  is  an  un- 
avoidable repugnancy.  A  reference  .to  a  multitude  of  such 
cases  has  been  given  in  a  note  to  another  section.'  It  is  not 
an  exhaustive  list,  but  is  full  enough  for  practical  purposes. 
It  is  now  proposed  to  analyze  a  few  well-considered  cases  to 
illustrate  the  practical  operation  of  the  principle  requiring  the 
reconcilement,  if  possible,  of  statutes,  where  there  is  a  question 
of  inconsistency  between  them. 

In  McCool  V.  Smith  ^  a  plaintiff  claiming  title  by  descent 
from  an  illegitimate  child  brought  ejectment,  having,  as  the 
law  then  stood,  no  title.  Pending  the  action  a  retrospective 
amendatory  act  was  passed  giving  effect  to  an  existing  act 
from  an  earlier  date  and  thereby  covering  the  date  of  the 
descent  in  question,  conferring  the  right  to  inherit  on  such 
children  "  the  same  as  if  such  act  had  been  in  force  at  the 
time  of  such  death."  This  amendatory  statute  was  held  not 
to  repeal,  as  to  such  cases,  the  common-law  rule,  and  a  state 

1  Cole  V.  Supervisors,  11  Iowa,  552.        *  Ex  parte  Davis,  21  Fed.  Rep.  396. 

2  Shear  v.  Commissioners,  14  Fla.        ^  Ante,  §  135. 
U6.  6 1  Black,  459. 

Mn^e,  §137. 


EEPEALLNG   ACTS.  201 

statute  declaratory  of  it,  requiring  a  plaintiff  to  have  title  at 
the  commencement  of  his  action.  The  general  rule  being  that 
repeals  by  ini])lication  are  not  favored,  there  will  be  no  such 
repeal  if  it  be  possible  to  reconcile  the  two  acts.  The  court,  by 
Svvayne,  J.,  said:  "  It  is jyossihle  to  reconcile  the  two  acts.  It 
may  well  be  that  the  legislature  intended  to  vest  the  title  re- 
trospectively for  the  purpose  of  giving  effect  to  mesne  convey- 
ances and  preventing  frauds,  without  intending  also  to  throw 
the  burden  of  the  costs  of  an  action  of  ejectment,  then  pend- 
ing, upon  a  defendant  who,  as  the  law  and  facts  were  at  the 
commencement  of  the  action,  must  have  been  the  successful 
party.  A  stronger  case  than  this  must  be  presented  to  induce 
us  to  sanction  such  a  result  by  our  judgment.  If  the  plaintiff 
can  recover,  it  must  be  in  an  action  brought  after  the  IGth  of 
February,  1S57.  He  cannot  recover  upon  a  title  acquu-ed  since 
the  commencement  of  the  suit." 

In  a  curative  act  it  was  provided  that  when  an  instrument 
made  in  good  faith  and  on  a  valuable  consideration,  and  in- 
tended to  operate  as  a  conveyance,  is  placed  on  record  in  the 
county  where  the  lands  lie,  and  the  paper  has  a  defect  in  some 
statutor}^  requisites  in  the  acknowledgment  or  certificate  of 
acknowledgment,  the  record  shall  operate  as  legal  notice  of  all 
the  rights  secured  by  the  instrument.  Six  years  afterwards 
the  legislature  enacted  an  amendment  to  the  statutes  relative 
to  deeds  by  adding  a  section  prohibiting  the  recording  of  such 
defective  conveyances.  This  was  held  not  a  repeal  of  the 
curative  act.  "  Repeals  by  implication,"  say  the  court,  "  are 
not  favored,  and  there  is  certainly  much  room  for  both  of  these 
statutes  to  operate  without  conflict.  Both  are  designed  to 
guard  and  secure  rights ;  not  to  impair  or  destroy  them.  And 
the  grounds  of  pohcy  for  the  [curative  statute],  as  one  to  op- 
erate in  future,  were  as  evident  [when  the  other  was  subse- 
quently passed] ;  and  when  the  legislature  required  registers 
to  abstain  from  recording  defective  papers,  they  were  weU 
aware  tliat  such  papers  after  all  would  sometimes  get  on  rec- 
ord, and  that  important  interests  might  be  sacrificed  unless 
some  effect  should  be  given  to  such  records.  Accepting  this 
as  a  true  and  practical  view  of  the  matter,  they  allowed  the 
[curative  act]  to  remain  and  endeavored  by  [the  other  act]  to 


202  BEPEALING   ACTS. 

lessen  tlie  occasions  for  its  application."  ^  A  Mississippi  act 
passed  in  1852  appropriated  a  fund  derived  from  a  certain 
source,  then  in  the  state  treasury,  to  the  several  counties  to  be 
expended  for  a  specified  purpose.  A  portion  of  this  appropri- 
ated fund  was  still  in  the  treasury  in  185Y,  and  was  largely 
increased  by  accretions  subsequently  to  the  appropriation. 
The  legislature,  by  an  amendment  passed  the  last  mentioned 
year,  not  referring  to  the  other  nor  specially  to  the  money  ap- 
propriated by  it,  directed  a  different  use  of  the  moneys  then 
in  the  treasury.  It  was  held  possible  to  reconcile  these  acts. 
The  portion  of  the  fund  which  was  in  the  treasury  in  1852 
was  held  still  appropriated  and  subject  to  the  act  of  that  year, 
and  that  act  not  repealed;  that  the  subsequent  act  related 
only  to  the  residue ;  that  thus  the  acts  could  stand  together.- 
§  119.  A  statute  which  denied  to  a  married  female  the  right 
to  dispose  of  land  by  will  is  not  impliedly  rej)ealed  by  a  sub- 
sequent statute  which  made  it  lawful  for  her  to  receive  b}^  gift, 
grant,  devise  or  bequest,  and  to  hold  to  her  sole  and  separate 
use  as  if  she  were  a  single  female,  real  and  personal  property, 
and  the  rents,  issues  and  profits  thereof,  and  assuring  the 
same  against  her  husband's  disposal  and  his  debts.  The  lan- 
guage of  the  statute  gave  her  only  the  right  to  receive  and 
hold  —  a  jnere  jus  tenendi,  not  disjjonendi.^  Two  acts  were 
passed  at  one  session  of  the  legislature ;  the  first  one  taking 
effect  imposed  a  Ucense  tax  for  the  state  $300,  and  for  the 
county  $100,  upon  every  vendor  of  spmtuous,  vinous  or  malt 
liquors,  doing  business  for  one  year  or  less,  and  provided  that 
any  person  who  should  engage  in  the  sale  thereof  without 
having  paid  this  tax  should,  on  conviction,  be  fined  in  double 
the  amount  of  the  license.  The  other  act  was  to  regulate  for 
police  purposes  the  same  traffic ;  it  prescribed  a  penalty  of  not 
less  than  two  hundred  nor  more  than  five  hundred  dollars  for 
clandestine  sales.  It  was  held  that  there  was  no  repeal.  The 
last  act  was  intended  to  punish  for  occasional  sales  of  liquor 
by  unauthorized  persons  having  no  bar-rooms  or  regular  places 
of  business,  and  whose  sales  would  be  no  particular  detriment 

1  Brown  v.  McCormick,  28  Mich.        2  McAfee  v.  Southern  R.  R  Co.  36 
215.  Miss.  669. 

3  Naylor  v.  Field,  29  N.  J.  L.  287. 


REPEALING  ACTS.  203 

to  the  revenue ;  the  other  act  ap})ned  to  those  who  engaged  in 
selling  as  a  business.^ 

§  150.  By  statute  as  well  as  by  the  common  law  in  Indiana 
prior  to  1881  a  husband  and  wife,  upon  a  deed  made  to  both, 
bacame  neither  joint  tenants  nor  tenants  in  common,  but  were 
seized  of  the  entirety,  so  that  on  the  death  of  either  the  sur- 
vivor took  the  whole;  and  during  their  lives  neither  could 
convey  without  the  consent  of  the  other,  nor  could  any  part 
of  the  land  be  taken  on  execution  for  the  separate  debt  of 
either.  This  doctrine  was  not  abolished  or  repealed  by  impli- 
cation by  the  act  passed  in  1881,  providing  that  "A  married 
woman  may  take,  acquu'e  and  hold  property,  real  or  personal, 
by  conveyance,  gift,  devise  or  descent,  or  by  purchase  with 
her  separate  means  or  money ;  and  the  same,  together  with 
the  rents,  issues,  income  and  profits  thereof,  shall  be  and  re- 
main her  own  separate  property,  and  under  her  own  control, 
the  same  as  if  she  were  unmarried."  It  was  held  that  these 
laws  could  stand  together.  A  married  woman  may  well  have 
aU  the  personal  rights  conferred  by  the  act  of  1881  as  to  her 
separate  property,  without  any  interference  or  coUision  with 
the  statutes  as  to  entu'eties.  When  husband  and  wife  take 
by  entireties  neither  of  them  holds  any  of  the  property  sepa- 
rately.'- 

A  statute  fixing  the  annual  salary  of  a  public  office  at  a  sum 
certain,  without  limitation  as  to  time,  is  not  abrogated  or  sus- 
pended by  subsequent  enactments  which  merely  appropriate 
a  less  amount  for  the  services  of  that  office  for  particular  fiscal 
years,  and  which  contain  no  words  that  expressly  or  by  clear 
implication  modify  or  repeal  the  previous  law.'  Two  acts 
were  passed  at  the  same  session,  and  by  their  terms  to  take 
effect  on  the  same  day ;  one  provided  for  the  organization  of 
towns  whenever  a  majority  of  the  legal  voters  of  any  con- 
gressional township  containing  twenty-five  legal  voters  should 

^  Blackwcll  V.  State,  45  Ark.  90.  act  containing  the  same  provision, 

-  Carver  v.  Smith,  90  IncL  222 ;  S.  C.  with  some  ummportant  additions  as 

46  Am.  Rep.  210.    An  act  provided  to  matters  of  detaU,  and  a  fm-ther 

fen-  extending  the  regular  term  of  provision  autliorizing  special  terms 

the  com-t  so  long  as  might  be  neces-  also.     Coi'dell  v.  State,  23  Ind  1. 

sary  to  finish  the  business  pending  -'United   States    v.   Laugston,  118 

tlierem ;  held  not  repealed  by  a  later  U.  S.  389. 


204  REPEALING   ACTS. 

petition ;  tiie  other  was  a  provision  that  no  town  shall  be 
vacated,  nor  any  town  with  an  area  of  thirty-six  sections  or 
less  be  divided  or  have  any  part  stricken  therefrom,  without 
first  submitting  the  question  to  the  electors  of  the  town.  It 
was  held  that  they  could  stand  together ;  the  former  conferred 
a  power  in  general  terms  and  the  latter  imposed  a  limitation.^ 

§  151.  Three  successive  acts  of  limitation  were  passed ;  each 
provided  a  bar  to  an  action  of  assumpsit  if  not  commenced 
within  six  years  after  the  cause  of  action  accrued.  The  sec- 
ond in  terms  repealed  the  first.  The  third  was  put  in  force 
without  any  repeahng  clause.  A  right  of  action  run  three 
years  under  the  fii'st,  and  three  years  under  the  second,  and 
the  action  was  brought  after  the  third  had  been  enacted ;  it 
was  held  that  the  action  Avas  barred.  There  was  no  repeal, 
for  the  acts  were  not  inconsistent.^  It  is  deemed  that  there 
is  less  probability  that  repugnant  acts  will  be  passed  at  the 
same  session  than  at  different  sessions  of  the  legislature.^  At 
the  same  session  of  the  legislature  two  acts  were  passed  rela- 
tive to  the  place  where  actions  against  corporations  might  be 
brought.  The  act  first  passed  provided  that  such  actions  might 
be  brought  in  any  county  where  the  cause  of  action  or  a  part 
thereof  accrued,  or  in  any  county  where  the  corporation  had 
an  agency  or  representative  or  in  which  was  its  principal  of- 
fice. The  second  act  gave  a  right  in  terms  to  bring  an  action 
in  any  county  in  which  the  cause  of  action  or  a  part  thereof 
arose  —  it  contained  no  repealing  clause.  It  was  held  not  to 
repeal  the  former.* 

Before  the  new  constitution  of  Ohio  took  effect,  the  legis- 
lature of  that  state  passed  a  law  authorizing  towns  and  coun- 
ties, the  people  assenting,  to  subscribe  for  stock  in  railroad 
corporations.  A  clause  in  the  constitution  declares  that  "  the 
general  assembly  shall  never  authorize  any  county,  town  or 
township  by  vote  of  its  citizens  or  otherwise  to  become  a 
stockliolder  in  any  joint-stock  company  or  corporation."  It 
was  held  that  this  clause  did  not  repeal  the  previous  law.^    A 

1  Supervisors  v.  Board  of  Commis-  *  Houston,  etc.  R  R  Co.  v.  Ford,  53 
sioners,  12  Wmxu  403.  Tex.  364. 

2  McLauglilin  v.  Hoover,  1  Oregon,  *  Cass  v.  Dillon,  2  Ohio  St  607 ; 
31.  State  ex  rel.  v.  Dudley,  1  Ohio  St 

3  HoTiston,  etc.  R  R  Co.  v.  Ford,  53  437 ;  Van  Hagan,  Ex  parte,  25  id. 
Tex.  364  426 ;  Elizabethtown,  etc.  R  R  Ca  v 


EEPEALINO   ACTS.  205 

statute  wliich  does  not  take  away  any  right,  or  impose  any 
substantially  new  duty,  but  regulates  with  additional  require- 
ments a  duty  imposed  by  a  pre\'ious  statute,  is  not  to  be 
deemed  inconsistent  with  the  previous  act.'  A  subsequent 
statute  which  institutes  new  methods  of  proceeding  does  not, 
without  negative  words,  repeal  a  former  statute  relative  to 
procedure.*  The  statute  authorizing  a  proceeding  to  contest 
the  validity  of  a  will  "  by  petition  to  the  court  of  common 
pleas  "  does  not  repeal  the  provisions  of  the  former  statute 
authorizing  a  proceeding  by  bill  in  chancery.^  A  statute 
which  authorizes  a  certain  oath  to  be  taken  before  a  particu- 
lar officer  is  not  repealed  by  a  statute  which  extends  the 
power  to  administer  oaths  to  a  class  of  officers.*  If  two  stat- 
utes can  be  read  together  without  contradiction,  or  repug- 
nancy, or  absurdity  or  unreasonableness,  they  should  be  read 
together,  and  both  will  have  effect.* 

§  152.  It  is  not  enough  to  justify  the  inference  of  repeal 
that  the  later  law  is  different ;  it  must  be  contrary  to  the  prior 
law.^  It  is  not  sufficient  that  the  subsequent  statute  covers 
some  or  even  all  the  cases  provided  for  by  the  former,  for  it 
may  be  merely  affirmative,  accumulative  or  auxiliary ;  there 
must  be  positive  repugnancy ;  and  even  then  the  old  law  is 
repealed  by  implication  only  to  the  extent  of  the  repugnancy.'^ 
If,  by  fair  and  reasonable  interpretation,  acts  which  are  seem- 
ingly incompatible  or  contradictory  may  be  enforced  and 
made  to  operate  in  harmony  and  witliout  absurdity,  both  will 
be  upheld,  and  the  later  one  will  not  be  regarded  as  repealing 
the  others  by  construction  or  intendment.^    As  laws  are  pre- 

Elizabethtown,   13  Bush,  233 ;  Coats  Ala.  276 ;  Enloe  v.  Reike,  56  id  500 ; 

V.   Hill,   41   Ark.    149;    Stephens    v.  Wagner  v.  Stoll,  2  Ricli.  (N,  S.)539; 

Ballou,  27  Kan.  594.  Robb  v.  Gurney,  id.  559. 

1  Staats  V.  Hudson  River  R,  R  Co.  6  Nixon  v.  Piffet,  16  La,  Ann.  379 ; 

4  Abb.  App.  Dea  287.  Kesler  v.  Smith,  66  N.  C.  154 ;  Landis 

^Shai-p  V.   Warren,   6  Price,  131;  v.  Landis,  39  N.  J.  L.  274. 

Mitchell  V.  Duncan,  7  Fla.  13.  '  Wood  v.   United  States,   16  Pet. 

« Raudebaugh  v.  Shelley,  6  Ohio  St  842,  363 ;  Coats   v.  Hill,  41  Ark.  149 ; 

807.  Connors  v.  Carp  River  Iron  Co.  54 

♦Ruckman  v.  Ransom,  35  N.  J.  L.  Mich.  168;  People  v.  Supervisors,  67 

565.  N.  Y.  109.       . 

sRegina  v.  Mews,  6  Q.  B.  Div.  47;  8  Elizabethtown,  etc.    R  R  Co.  v. 

S.  C.  L.  R  8  App.  Cas.  339,  revei-sing  Elizabethtown,   13  Bush,   233;    Hig- 

the  ruling  below ;  Smith  v.  Speed,  50  gins  v.  State,  64  Md.  419, 433 ;  McCool 


206  REPEALING   ACTS. 

sumed  to  be  passed  with  deliberation  and  with  a  full  knowl- 
edge of  aU  existing  ones  on  the  same  subject,  it  is  but  reason- 
able to  conclude  that  the  legislature,  in  passing  a  statute,  did 
not  intend  to  interfere  with  or  abrogate  any  former  law  re- 
lating to  the  same  matter,  unless  the  repugnancy  between  the 
two  is  irreconcilable.'  In  the  endeavor  to  harmonize  statutes, 
seemingly  incompatible,  to  avoid  repeal  by  implication,  a  court 
will  reject  absurdity  as  not  enacted,  and  accept  with  favorable 
consideration  what  is  reasonable  and  convenient.  In  cases  of 
doubt,  repeal  of  a  statute  or  of  the  common  law  may  be  deemed 
intended  in  favor  of  convenience.^  An  argument  based  on  in- 
convenience is  forcible  in  law ;  ^  no  less  so  is  one  to  avoid  what 
is  unjust  or  unreasonable.^  Like  considerations  of  what  is 
convenient,  just  or  reasonable,  when  they  can  be  invoked 
against  the  imphcation  of  repeal,  will  be  still  more  potent. 
The  act  being  silent  as  to  repeal  and  afRrmative,  it  will  not  be 
held  to  abrogate  any  prior  law  which  can  reasonably  and 
justly  operate  without  antagonism.* 

§  153.  The  presumption  is  stronger  against  implied  repeals 
where  provisions  supposed  to  conflict  are  in  the  same  act  or 
were  passed  at  nearly  the  same  time.  In  the  first  case  it 
would  manifestly  be  an  inadvertence,  for  it  is  not  supposable 
that  the  legislature  would  deliberately  pass  an  act  with  con- 
flicting intentions ;  in  the  other  case  the  presumption  rests  on 
the  improbability  of  a  change  of  intention,  or,  if  such  change 
has  occurred,  that  the  legislature  would  express  it  in  a  differ- 
ent act  without  an  express  repeal  of  the  first.^    Where  a  stat- 

V.  Smith,  1  Black,  459 ;  Cass  v.  Dillon,  State  v.  Stinson,  17  Me.  154 ;  Smith  v. 

2  Ohio  St.  607 ;  Howard  Association's  People,  47  N.  Y.    330 ;    Commercial 

Appeal,  70  Pa.  St  344.  Bank  v.  Chambers,  8  S.  &  M.  9,  46. 

i  Bowen  v.  Lease,  5  Hill,  231,  226.  ^  Houston,  etc.  R.  R.  Co.  v.  Ford,  58 

2  Steward  v.  Greaves,  10  M.  &  W.  Tex.  364;  S.  C.  2  Am.  &  Eng.  R.  R. 
711 ;  Davison  v.  Farmer,  6  Ex.  242,  Cas.  514 ;  Eckloff  v.  Dist.  of  Colimi- 
256.  bia,  4  Mackay,  572 ;  Peyton  v.  Moseley, 

3  Co.  Litt.  97a.  3  T,  B.  Jilon.  77 ;    Gibbons  v.  Brit- 
*  Rex  V.  Whiteley,  3  H.  &  N.  143 ;    tenum,  56  Miss.  232 ;    State  ex  rel. 

Johnson  v.  Bush,  3  Barb.  Ch.  207, 238.  Kellogg  v.   Treasurer,    41    Mo.    16 ; 

See  Harris  v.  Jenns,  9  C.  B.  (N.  S.)  152.  State  v.  Clark,  54  id.  216 ;  Nazareth 

SAnfe,  §139  ;McNeelyv.  Woodruff,  L.   B.   I.   v.    Commonwealth,   14    B. 

18  N.  J.  L.  352,  356,  357 ;  Evergreens,  Mon.  266 ;  State  v.  Rackley,  2  Blackf. 

Matter  of,  47  N.  Y.  216, 221 ;  Chamber-  249 ;  Smith  v.  People,  47  N.  Y.  330 ; 

lain  V.  Chamberlain,  43  id.  424,  438 ;  Dawson  v.  Horaaa,    51    Barb.    459 ; 


EEPEALING   ACTS.  207 

ute  expresses  first  a  general  intent,  and  afterwards  an  incon- 
sistent particular  intent,  the  latter  will  be  taken  as  an  exception 
from  the  former  and  both  will  stand. • 

§  15J-.  Repeal  by  revision.— Revision  of  statutes  implies  a 
re-examination  of  them.  The  word  is  applied  to  a  restatement 
of  the  law  in  a  corrected  or  improved  form.  The  restatement 
may  be  with  or  without  material  change.  A  revision  is  in- 
tended to  take  the  place  of  the  law  as  previously  formulated. 
By  adopting  it  the  legislature  say  the  same  thing,  in  effect,  as 
when  a  particular  section  is  amended  by  the  words  "  so  as  to 
read  as  follows."  The  revision  is  a  substitute;  it  displaces 
and  repeals  the  former  law  as  it  stood  relating  to  the  subjects 
within  its  purview.  Whatever  of  the  old  law  is  restated  in 
the  revision  is  continued  in  operation  as  it  may  operate  in  the 
connection  in  which  it  is  re-enacted. 

In  Bartlet  v.  King,^  Dewey,  J.,  said :  "  A  subsequent  statute 
revising  the  whole  subject-matter  of  a  former  one,  and  evi- 
dently intended  as  a  substitute  for  it,  although  it  contains  no 
express  words  to  that  effect,  must  on  principles  of  law,  as 
well  as  in  reason  and  common  sense,  operate  to  repeal  the 
former."  ^ 

Though  a  subsequent  statute  be  not  repugnant  in  all  its  pro- 
visions to  a  former,  yet  if  it  was  clearly  intended  to  prescribe 
the  only  rule  which  should  govern,  it  repeals  the  former  stat- 
ute.*   Without  express  words  of  repeal  a  previous  statute  will 

Sanders  v.  State,  77  Ind.  227 ;  Beals  Tex.  418 ;  IHulligan  v.  Cavanagh,  46 

V,  Hale,  4  How.  37 ;    Supervisoi-s  v.  N.  J.  L.  45,  49 ;  Murdock  v.  Memphis, 

Board  of  Commissioners,   12  Minn,  20  Wall.  617 ;  State  v.  StoU,  17  Wall. 

403.  425 ;  United  States  v.  Tynen,  11  Wall 

1  Stockett  -9.  Bird,  18  Md.  484 ;  De  88 :  Board  of  Commissionere  v.  Potts, 

Winton  v.  Mayor,  26  Beav.  533.  10  Ind.  28(5 ;  State  v.  Wilson,  43  N.  11. 

2 12  IMass.  545.  419 ;  AVater  Works  Co.  v.  BurkharL. 

3Ro-jrs  V.  Watrous,   8    Tex.   62;  41  Ind.  364;  FaiT  v.  Brackett.  30  Vt. 

King  V.  Cornell,  106  U.  S.  395 ;  Excel-  344 ;  Tracy  v.  Tuffly,  134  U.  S.  206 ; 

sior  Petroleimi  Co.  v.  Embury,    67  Giddiugs  v.  Cox,  31  Vt  607;    State 

Bai-b.  261 ;  Ellis  v.  Paige,  1  Pick.  45 ;  v.  Kelley,  34  N.  J.  L.  75 ;  Pingree  v. 

Berkshire  v.  Miss.  etc.  E'y  Co.  28  Mo.  Suell,  42  Me.  53 ;  Fayette  County  ^•. 

App.  225 ;    Lyon  v.  Smith,  11  Barb.  Faires,  44  Tex.  514 ;  Sacramento   v. 

124 ;    Smith  v.  Nobles  Co.  37  Minn.  Bird,  15  Cal.  294 ;  State  v.  Conkling, 

535.  19  Cal.  501 ;  Dexter  &  Limerick  P.  R 

*  Rogers  v.  Watrous,  siipra;  Indus-  Co.  v.  Allen,  16  Barb.  15 ;  Bracken  v. 

trial  School  Disti-ict  v.  Whitehead,  13  Smith,  39  N.  J.  Eq.  169 ;  Andrews  v. 

N.  J.  Eq.  290 ;  Bryan  v.  Sundberg,  5  People,  75  111.  605 ;  Daviess  v.  Fair- 


208 


REPEALING    ACTS. 


he  held  to  be  modiiied  by  a  subsequent  one,  if  the  latter  was 
plainly  intended  to  cover  the  subject  embraced  by  both,  and 
to  prescribe  the  only  rules  in  respect  to  that  subject  that  are 
to  govern.'  Where  a  provision  is  amended  by  the  form,  "  to 
read  as  follows,"  the  intention  is  manifest  to  make  the  provis- 
ion following  a  substitute  for  the  old  provision  and  to  operate 
exclusively  in  its  place.*  Does  a  revision  import  that  it  shall 
displace  the  last  previous  form ;  that  it  is  evidently  intended 
as  a  substitute  for  it ;  that  it  is  intended  to  prescribe  the  only 
rule  to  govern?  In  other  words,  will  a  revision  repeal  by  im- 
plication previous  statutes  on  the  same  subject,  though  there 
be  no  repugnance?  The  authorities  seem  to  answer  emphat- 
ically, Yes.  The  reasonable  inference  from  a  revision  is  that 
the  legislature  cannot  be  supposed  to  have  intended  that  there 
should  be  two  distinct  enactments  embracing  the  same  subject- 
matter  in  force  at  the  same  time,  and  that  the  new  statute, 
being  the  most  recent  expression  of  the  legislative  will,  must 
be  deemed  a  substitute  for  previous  enactments,  and  the  only 
one  which  is  to  be  regarded  as  having  the  force  of  law." 


bairn,  3  How.  636;  Red  Rock  v, 
Henry,  106  U.  S.  596 ;  People  v.  Brook- 
lyn, 69  N.  Y.  605 ;  Cook  County  Nat 
Bank  v.  United  States,  107  U.  S.  445, 
J  Tracy  v.  Tuffly,  134  U.  S.  206. 

2  United  States  v.  Barr,  4  Sawy.  254 
United  States  v.  Tynen,  11  WaU.  95 
Knox  V.  Baldwin,  80  N.  Y.  610 
Goodno  V.  Oshkosh,  31  V/is.  127 
State  V.  IngcrGoll,  17  id.  631 ;  State  v. 
Beswick,  13  R  I.  211. 

3  Commonwealth  v.  Kelliher,  12  Al- 
len, 480 ;  Pratt  v.  Street  Commission- 
ers, 139  Mass.  559,  563;  Knight  v. 
Aroostook  R  R.  67  Me.  291 ;  Towle  v. 
Marrett,  3  Grcenlf.  22;  Common- 
wealth V.  Cooley,  10  Pick.  37;  Og- 
boume  v.  Ogboume's  Adm'r,  60  Ala, 
616 ;  Roche  v.  Jersey  City,  40  N.  J.  L. 
257;  Scott  v.  Simons,  70  Ala.  352; 
Goodenow  v.  Buttrick,  7  Mass.  140; 
Stirman  v.  State,  21  Tex.  734 ;  Ashley, 
Appellant,  4  Pick.  21,  23;  Smith  v. 
Hickman's  Heirs,  Cooke  (Tenn.),  330 ; 
Mayor,  etc  v.  Groshon,  30  Md.  436; 


Burlander  v.  Railway  Co.  26  Wis.  76 ; 
Simmons  v.  Bradley,  27  id.  689 ;  Moore 
V.  R^iilroad  Co,  34  id.  173 ;  Gilbank  v. 
Stephenson,  30  id.  157 ;  Oleson  v.  Rail- 
way Co.  36  id.  383 ;  State  v.  Campbell, 
44  id.  529 ;  Davis  v.  Carew,  1  Rick  275 ; 
Gibbons  v.  Brittenum,  56  Miss.  232; 
Pana  v.  Bowler,  107  U.  S.  529 ;  Cook 
County  Nat.  Bank  v.  United  States, 
id.  445 ;  Commonwealth  v.  Watts,  84 
Ky.  537 ;  Harold  v.  State,  16  Tex.  App. 
157 ;  Tafoya  v.  Garcia,  1  New  Mex. 
486 ;  Lawson  v.  De  Bolt,  78  Ind.  563 ; 
State  V.  Studt,  31  Kan.  245 ;  Werbom 
V.  Austin,  77  Ala.  381 ;  Sawyers  v. 
Baker,  72  id.  49 ;  Carmichael  v.  Hays, 
66  id.  543 ;  Hatchett  v.  Bilhngslea,  65 
id,  16 ;  I'\irraan  v.  Nichol,  3  Cold.  439 ; 
Mayor  v.  Dearmon,  2  Sneed,  120; 
United  States  v.  Claflin,  97  U.  S.  546 ; 
Commonwealth  v.  Cromley,  1  Ashm. 
179 ;  Heckmann  v.  Pinkney,  81  N.  Y. 
211 ;  State  v.  Wliitworth,  8  Port  434 ; 
Wood  V.  State,  47  Ark.  488;  Steb- 
bins  V.  State,  22  Tex.  App.  32 ;  Smith 


EEPEALING    ACTS. 


209 


§  155.  A  revising  statute  embracing  antecedent  general 
laws  on  various  subjects  and  reducing  them  to  one  system  and 
one  text  repeals  all  prior  statutes  upon  the  same  subjects  not 
included  in  the  body  of  the  revision  and  not  exempted  by  an 
express  clause.^  Where  one  act  is  framed  from  another,  some 
parts  taken  and  others  omitted ;  or  where  there  are  two  acts 
on  the  same  subject,  and  a  later  embraces  all  the  provisions 
of  the  first  and  also  new  provisions,  the  later  act  operates, 
without  any  repeahng  clause,  as  a  repeal  of  the  first.^  But 
the  object  of  the  old  and  the  new  acts  must  be  the  same.* 
The  fact  of  revision  raises  a  presumption  of  a  complete  code, 
or  a  complete  treatment  of  the  subjects  embraced  in  it.* 
Where  the  revising  act,  however,  prescribes  its  operation  or 
effect  upon  a  previous  statute,  it  will  have  no  other.^  Thus,  if 
it  contains  an  express  repeal  of  all  inconsistent  acts  and  parts 
of  acts,  there  is  an  implication  that  if  there  are  parts  of  former 
acts  not  embraced  in  the  new  act  and  not  inconsistent  they 
are  not  repealed.® 

§  156.  The  important  question  in  these  cases  is  whether  a 
later  act  is  intended  by  the  legislature  to  be  a  revision  of  the 
law  relating  to  the  subjects  within  its  purview.  It  cannot  be 
so  intended  unless  it  is  a  complete  substitute  for  the  previous 


V.  State,  1  Stew.  506 ;  United  States  v. 
Cheeseman,  3  Sawy.  424 ;  State  v.  Sea- 
bom,  4  Dev.  305;   Montel  &  Co.  v. 
Consolidated   Coal  Co.  39  Md.   164; 
Dugan  V.  Gittings,  3  GiU,  138 ;  Gor- 
ham  V.  Luckett,  6  B.  Mon.  154 ;  Smith 
V.  State,  14  Mo.  147 ;  Ellis  v.  Paige,  1 
Pick.  43 ;  Bryan  v.  Sundberg,  5  Tex. 
418;   State  v.  Rogers,  10  Nev.  319 
Leighton  v.   Walker,   9   N.   H.    59 
Schneider  v.  Staples,  66  Wis.    167 
Shannon  v.  People,  5  IVIich.  71,  85 
Broaddvis  v.  Broaddus,  10  Bush,  299 
Commonwealth  v.  Mason,  82  Ky.  256 
]\Iyei-s  V.  Mai-shall  Co.  55  Sliss.  344 
Swann  v.  Buck,  40  Miss.  278 ;  People 
V.  Carr,  36  Hun,  488 ;  Culver  t.  Third 
National  Bank,  64  111.  528 ;  Thorpe  v. 
Schooling,  7  Nev.  15. 

1  State  V.  Judge,  37  La,  Aim.  578 ; 
14 


Clay  Co.  Sup'rs  v.  Chickasaw  Co. 
Sup'rs,  64  IMiss.  534;  Stebbrns  v. 
State,  22  Tex.  App.  32 ;  State  v.  Court- 
ney, 73  Iowa,  619. 

2  EUis  V.  Paige,  1  Pick.  43 ;  United 
States  V.  Tynen,  11  Wall.  88;  Mears 
V.  Stewart,  31  Ark.  17. 

3  United  States  v.  Claflin,  97  U.  S. 
546;  Matter  of  Commissioners  of 
Central  Park,  50  N.  Y.  493,  497. 

*  Broaddus  v.  Broaddus,  10  Bush, 
299 ;  Coramonwealth  v.  Mason,  82  Ky. 
256. 

5  Patterson  v.  Tatum,  3  Sawy.  164  ; 
PurseU  V.  N.  Y.  Life  Ins.  Co.  42  N.  Y. 
Super.  Ct  383. 

6  Lewis  V.  Stout,  22  Wis.  234 ;  State 
V.  Pollard,  6  R  L  290 ;  Gaston  v.  Mer- 
riam,  33  Minn.  271. 


210  EEPEALING   ACTS. 

law  and  contains  the  only  rule  or  all  the  legislation  which  is 
intended  to  have  force  with  regard  to  those  subjects.  An  act 
which  professes  to  be  a  revision,  and  has  such  scope  of  subject- 
matter  that  its  title  and  profession  are  not  illusory,  should  ob- 
viously so  operate.^  So  where  there  are  two  statutes  on  the 
same  subject,  passed  at  different  dates,  and  it  is  plain  from  the 
frame-work  and  substance  of  the  last  that  it  was  intended  to 
cover  the  whole  subject,  and  to  be  a  complete  and  perfect 
system  or  provision  in  itself,  the  last  must  be  held  to  be  a  leg- 
islative declaration  that  whatever  is  embraced  in  it  shall  pre- 
vail and  whatever  is  excluded  is  discarded  and  repealed.^ 
Though  a  revision  operates  to  repeal  the  laws  revised  whether 
repugnant  or  not,  those  portions  that  are  re-enacted  are  con- 
tinuations.^ The  revision  is,  however,  a  re-enactment,  and  to 
be  alone  consulted  to  ascertain  the  law  when  its  meaning  is 
plain;  but  when  there  is  irreconcilable  conflict  of  one  part 
with  another,  the  part  last  enacted  in  the  original  form  will 
govern.*  And  when  it  becomes  necessary  to  construe  language 
used  in  the  revision  which  leaves  a  substantial  doubt  of  its 
meaning,  the  original  statutes  may  be  resorted  to  for  ascer- 
taining that  meaning.'  In  such  case  the  title  of  the  orig- 
inal act  may  be  considered,  especially  where  such  act  is  passed 
in  a  state  whose  constitution  requires  the  subject  to  be  there 
expressed.^  In  Louisiana  it  seems  to  be  settled  that  the  re- 
enactment  into  a  code  of  the  general  provisions  of  prior  laws 

1  United  States  v.  Bowen,  100  U.  S.  Citizens'  Mut  B.  Asso.  61  Ala.  232. 
508;  Arthm-  v.  Dodge,  101  id.  34;  3  Wright  v.  Oakley,  5  Met.  406; 
Myer  v.  Car  Co.  102  id.  1 ;  United  Steamsliip  Co.  v.  Joliffe,  2  WaU.  450, 
States  V.  Lacher,  134  U.  S.  624 ;  Vie-  458 ;  MitcheU  v.  Halsey,  15  Wend, 
tor  V.  Arthur,  104  id.  498 ;  Pratt  v.  241 ;  Douglas  v.  Douglas,  5  Hun,  140 ; 
Street  Commissioners,  139  Mass.  559,  Matter  of  Southworth,  id.  55 ;  Staf- 
563 ;  Broaddus  v.  Broaddus,  10  Bush,  ford  v.  His  Creditors,  11  La  Ann. 
299 ;  Commonwealth  v.  Mason,  82  470 ;  State  ex  reL  v.  WUtz,  id.  439. 
Ky.  256 ;  Cambria  Iron  Co.  v.  Ash-  *  Winn  v.  Jones,  6  Leigh,  74 ;  Black- 
burn, 118  U.  S.  54.  ford  v.  Hurst,  26  Gratt.  206;  Hmley 

2  Bracken  v.  Smith,  39  N.  J.  Eq.  v.  Town  of  Texas,  20  Wis.  634 

169 ;  Murdock  v.  Memphis,  20  Wall.  »  United  States  v.  Bowen,  100  U.  S. 

617 ;  Heckmann  v.  Pinkney,  81  N.  Y.  508 ;  United  States  v.  Hirsch,  id.  33 ; 

211 ;  Johnston's  Estate,  33  Pa.  St  511 ;  Vietor  v.  Arthur,  104  U.  S.  498 ;  Myer 

Herron   v.   Carson,  26  W.  Va.   62 ;  v.  Car  Co.  102  U.  S.  1 ;  United  States 

Rhoads    v.   HoemerstOAvn  Building,  v.  Lacher,  134  id.  624. 

etc  Asso.  82  Pa.  St  180 ;   Cahall  v.  6  Myer  v.  Car  Co.  102  U,  S.  1. 


REPEALING   ACTS.  211 

docs  not  repeal  exceptions  to  which  those  general  provisions 
were  subject.^ 

§  157.  General  laws  will  not  impliedly  repeal  those  which 
are  special  or  local. —  A  general  law  prescribing  a  rule  uni- 
versal as  to  a  subject  properly  includes  that  entire  subject 
and  operates  over  every  part  of  the  state.  The  common  law 
adapts  itself  to  varying  conditions  by  its  flexible  principles ; 
but  statutes  are  made  to  apply  to  given  conditions  by  classifi- 
cations, provisos,  exceptions  and  limitations.  A  general  law 
may  thus  be  prevented  from  operating  upon  every  subject,  and 
from  taking  effect  in  every  place.  The  purpose  of  a  general 
act  relative  to  a  given  subject  may  harmonize  with  a  different 
purpose  on  that  subject  in  a  particular  locality,  or  under  special 
conditions,  or  as  it  affects  a  particular  interest  or  a  particular 
person  or  class ;  it  may  harmonize  in  the  sense  that  both  pur- 
poses may  be  effectuated.  The  purpose  of  the  general  law 
may  be  carried  out  except  as  to  the  particulars  in  which  a  dif- 
ferent intention  is  manifested.  It  is  a  principle  that  a  general 
statute  without  negative  words  will  not  repeal  by  implicar 
tion  from  their  repugnancy  the  provisions  of  a  former  one 
which  is  special  or  local,  unless  there  is  something  in  the  gen- 
eral law  or  in  the  course  of  legislation  upon  its  subject-matter 
that  makes  it  manifest  that  the  legislature  contemplated  and 
intended  a  repeal.^ 

» Miller  v.  Mercier,  3  Martin  (N.  S.),  Mayor,  13  Ga.  404 ;  Kankakee  Co.  v. 

236;  S.  C.  15  Am.  Dec.  150.  ^tna  Life  Ins.  Co.  106  U.  S.  668; 

2Dwarris    on    St   332;   People    v.  State  v.  Mills,  34  N.  J.  L.  177;  Vail 

Quigg,  59  N.  Y.  83 ;  Anderson  v.  Hill,  v.  Easton,  etc.  E.  R.  Co.  44  id.  237 ; 

42  N.  J.  L.  351 ;  Crane  v.  Eeeder,  22  Schwenke  v.  Union  Depot  &  R  R. 

Mich.  322,  334 ;  Robbins  v.  State,  8  Co.  7  Colo.  512 ;  Pacific  R  R.  Co.  v. 

Olxio  St.  131,  191 ;  Deters  v.  Renick,  Cass  County,  53  Mo.  17 ;  Queen  v. 

37  Mo.  597 ;  State  v.  Branin,  23  N.  J.  Champneys,  L.  R.  6  C.  P.  384 ;  Tiemey 

L.  484;  Sheridan  v.  Stevenson,  44  id.  v.  Dodge,  9  ]\Iinn.  166;  Dyer  v.  Cov- 

371 ;  State  v.  Fiala,  47  Mo.  320 ;  State  ington  Township,  28  Pa  St  186 ;  State 

V.  DeBar,   58  id.   395 ;  Stiito  v.  Fitz-  v.  Severance,  55  Mo.  378,  386 ;  Conley 

porter,  17  Mo.  App.  271,  274 ;  Com-  v.  Supervisors,  2  W.  Va.  416 ;  State 

monwealth  v.  Cotton,  14  Phila.  667 ;  v.  Stoll,  17  WalL  425 ;  Providence  v. 

:^Iahony  v.  Wright  10  Ir.  C.  L.  (N.  S.)  Union  R  R  Co.  12  R  L  473 ;  Daviess 

420^,  Savannah  v.  Kelly,  108  U.  S.  184 ;  v.  Fau-bairn,  3  How.  636 ;  Mason  v. 

Smith,  Ex  parte,  40  Cal.  419 ;  State  v.  Harpers  Ferry  Bridge  Co.  17  W.  Va. 

Belvidere,  25  N.  J.  L.  563 ;  Jefferson  397  ;  Sheltou  v.  Baldwin,  26  Miss.  439 ; 

Co.  V.  Reitz,  56  Pa.  St  44 ;  People  v.  Chesapeake  &  Ohio  R.  R  Co.  v.  Hoard, 

Palmer,  52  N.  Y.  83 ;   Haywood  v.  16  W.  Va.  276 ;  Movius  v.  Arthur,  95 


212  EEPEALING   ACTS. 

'VTlien  the  legislator  frames  a  statute  in  general  terms  or 
treats  a  subject  in  a  general  manner,  it  is  not  reasonable  to 
suppose  that  he  intends  to  abrogate  particular  legislation  to 
the  details  of  which  he  had  previously  given  his  attention,  ap- 
phcable  only  to  a  part  of  the  same  subject,  unless  the  general 
act  shows  a  plain  intention  to  do  so.^ 

§  158.  The  special  act  must  conflict,  so  far  as  it  operates  to 
the  extent  of  its  lesser  scope,  with  the  general  act ;  otherwise 
there  would  generally  be  no  question  of  repeal ;  it  expresses 
a  particular  intent  incompatible,  jpi^o  tanto,  with  the  intent  of 
the  general  law.  The  general  law  can  have  full  effect  beyond 
the  scope  of  the  special  law,  and,  by  allowing  the  latter  to 
operate  according  to  its  special  aim,  the  two  acts  can  stand  to- 
gether. Unless  there  is  plain  indication  of  an  intent  that  the 
general  act  shall  repeal  the  other,  it  will  continue  to  have  ef- 
fect, and  the  general  words  with  which  it  conflicts  will  be 
restrained  and  modified  accordingly.^ 

A  special  act  granted  to  a  cemetery  association  capacity 
to  acquire  lands  in  a  viUage  named  for  a  public  purpose ;  by 
the  terms  of  the  act  the  land  so  acquired  was  not  liable  to  be 
taken  for  road  purposes.  An  act  was  subsequently  passed 
conferring  general  power  to  lay  out  and  vacate  roads  and 
streets  in  cities  and  villages  w^ithin  their  corporate  limits.  It 
was  held  that  the  two  acts  might  stand  together.     Under  the 

U.  S.  144;  Mayor  v.  Minor,  70  Ga,  85    Ky.    265;    Malloy    v.    Common- 

191 ;  Crow  Dog,  Ex  parte,  109  U.  S.  wealth,  115  Pa.  St.  25.    See  Red  Rock 

556 ;  Conservators  of  River  Thames  v.  Henry,  100  U.  S.  596. 
V.  Hall,  L.  R.  3  C.  P.  415 ;  Thorpe  v.        i  Crow  Dog,   Ex  parte,  109  U.  S. 

Adams,  L.  R.  6  C.  P.  125 ;  Cass  Coimty  556 ;  Dwarris  on  St.  532 ;  Sedgw.  St 

V.  GiUett,  100  U.  S.  585 ;  Omit  v.  Com-  &  Const.  L.  98 ;  State  v.  Judge  of  St. 

monwealth,   21  Pa   St  426 ;  Wood  Louis  P.  Ct  38  Mo.  529 ;  Brown  v. 


V.  Election  Com'rs,  58  Cal  561 
McKenna  v.  Edmundstone,  91  N.  Y, 
231 ;  State  v.  Stvirgess,  10  Oregon,  58 
Han-isburg  v.  Sheck,  104  Pa.  St  53 
Dick's  Appeal,  100  Pa.  St  589 
Schmidt  Ex  parte,  24  S.  C.  303 
People  v.  Supervisors,  40  Hun,  353 
Rounds  V.  Waymart  81  Pa.  St  395 
Covington  v.  East  St  Louis,  78  111, 
548 ;  McVey  v.  McVey,  51  Mo.  400 
Commonwealth  v.  Cain,  14  Bush 
625;  Adams  Exp.  Co.  v.  Owensboro, 


County  Commissioners,  21  Pa.  St  37 ; 
State  V.  Treasm-er,  41  Mo.  10,  24 ;  Fos- 
dick  V.  PeiTysburg,  14  Ohio  St  472 ; 
Robbins  v.  State,  8  id.  131,  191 ;  WiU- 
iams  V.  Pritchard,  4  T.  R,  2 ;  Fitzgerald 
V.  Champneys,  30  L  J.  Ch.  782,  S.  C. 
2  Johns.  &  H.  31. 

2  Dwarris  on  St  765;  Stockett  v. 
Bird,  18  Md.  484 ;  Crane  v.  Reeder, 
22  Midi.  322,  334 ;  Fosdick  v.  Perrys- 
burg,  14  Ohio  St  472;  Williams  v. 
Pritchard,  4  T.  R  2. 


EEPEALING    ACTS.  213 

general  law  all  roads  and  streets  in  the  village  are  under  its 
control  except  the  lands  of  the  association,  and  as  to  these  the 
association  has  the  exclusive  control.'  Where  there  are  in  one 
act  or  several  contemporaneously  passed,  specific  provisions 
relating  to  a  particular  subject,  they  will  govern  in  respect  to 
that  subject  as  against  general  provisions  contained  in  the 
same  acts.'- 

It  seems  to  be  immaterial  which  statute  is  first  enacted.  If 
the  special  statute  is  later  the  enactment  operates  necessarily 
to  restrict  the  effect  of  the  general  act  from  which  it  differs.' 

§  159.  These  interpretations  harmonize  with  the  rule  that 
when  a  general  intention  is  expressed,  and  also  a  particular 
intention,  which  is  incompatible  with  the  general  one,  the  par- 
ticular intention  shall  be  considered  an  exception  to  the  gen- 
eral one.*  There  is  no  rule  of  law  which  prohibits  the  repeal 
of  a  special  act  by  a  general  one,  nor  is  there  any  principle 
forbidding  such  repeal  without  the  use  of  words  declarative 
of  that  intent.  The  question  is  always  one  of  intention,  and 
the  purpose  to  abrogate  the  particular  enactment  by  a  later 
general  statute  is  sufficiently  manifested  when  the  provisions 

1  Village  of  Hyde  Park  v.  Cemetery  includes  the  several  parts,  and  all 
Asso.  119  111.  141.  local  laws  establishing  one  rule  for 

2  Felt  V.  Felt,  19  Wis.  193,  196 ;  one  portion  of  the  commuxiity,  and  a 
State  V.  Goetze,  23  id  363 ;  Crane  t.  different  one  for  the  remaining  por- 
Reeder,  22  Mich.  333.  In  Nusser  t.  tion,  are  inconvenient  and  of  doubt- 
Commonwealth,  25  Pa,  St.  136,  the  ful  propriety,  except  where  they  re- 
question  was  whether  an  act  impos-  late  to  matters  which  are  local  in 
ing  a  fine  of  $50  for  selling  Uquors  their  natm-e,  and  are  enacted  by  the 
on  Sunday  within  the  county  of  Al-  proper  municipal  authorities  of  the 
legheny,  and  authorizing  a  summary  territories  over  which  they  are  de- 
conviction  before  a  single  justice  of  signed  to  operate." 

the  peace,  was  repealed  by  a  later  ^  McGavick  v.  State,  84  N.  J.  L.  509 ; 
statute  imposing  the  same  penalty  Sniith>  Ex  parte,  40  Cal.  419 ;  Galway 
for  the  same  offense  committed  any-  Presentments,  Ex  parte,  9  W.  E.  C. 
where  in  the  state,  and  prescribing  a  L.  114  Q.  B. ;  The  I\Iayor  v.  The  Ma- 
mode  of  procedure  by  indictment  and  con,  etc.  R  R.  Co  7  Ga.  231 ;  Town- 
jury  ti-ial.  It  was  held  to  have  the  send  v.  Little,  109  U.  S.  504 ;  Blain  v. 
effect  of  repeal.  The  court  say :  Bailey,  25  Ind.  165. 
"  Where  the  prior  enactment  is  local  "•  Dwarris  on  St.  765 ;  Stockett  v. 
and  the  new  one  general  in  its  opera-  Bird,  18  McL  484,  489 ;  ChurchUl  v. 
tion,  the  maxim  [that  a  repugnant  Crease,  5  Bing.  ISO;  Pilkiugton  v. 
statute  is  a  repeal  of  all  subsequent  Cooke,  16  M.  &  W.  615 ;  Taylor 
provisions  in  a  prior]  applies  with  un-  v.  Oldliam,  4  Ch.  Div.  395. 
diminished  force,  because  the  whole 


214:  REPEALING    ACTS. 

of  bolli  cannot  stand  together.  A  special  and  local  law  pro- 
vided that  certain  property  should  be  subject  to  taxation ;  a 
subsequent  general  one  that  all  such  property  should  be  ex- 
empt, and  repealed  all  local  or  special  acts  inconsistent  with 
its  provisions.     It  was  held  that  the  special  act  was  repealed.^ 

Where  all  acts  must  be  general  by  the  constitution,  and  such 
an  act  is  passed  and  it  repeals  all  inconsistent  legislation,  it 
will  have  the  effect  to  repeal  all  special  acts  which  are  in  con- 
flict with  it.  A  law  applying  to  some  townships  and  except- 
ing others  is  not  a  general  law.  The  intention  to  except  from 
such  a  law  those  which  have  special  laws  will  not  be  imputed 
to  the  legislature  when  such  exception  would  render  the  law 
unconstitutional,  and  it  is  framed  broad  enough  to  embrace  the 
entire  class  to  which  it  relates.^  Special  or  local  laws  will  be 
repealed  by  general  laws  when  the  intention  to  do  so  is  mani- 
fest, as  where  the  latter  are  intended  to  establish  uniform  rules 
for  the  whole  state.*  A  general  act  prescribing  a  mode  of 
•punishment  for  a  specific  offense  throughout  the  state  will  re- 
peal an  act  limited  to  a  single  county  prescribing  a  different 
punishment.*  A  general  statute  for  the  suppression  of  pros- 
titution is  inconsistent  with  a  local  statute  authorizing  a  regu- 
lation of  it.-'  A  local  or  special  law  which  adopts,  by  refer- 
ence, provisions  relating  to  procedure  from  an  existing  general 
statute,  is  not  necessarily  abrogated  or  affected  by  the  subse- 
quent repeal  of  the  act  containing  the  adopted  provisions.** 

§  160.  The  later  law,  which  is  potent  to  repeal. —  If  a 
conflict  exists  between  two  statutes  or  provisions,  the  earlier 
in  enactment  or  position  is  repealed  by  the  later.  Leges  jpos- 
terioris  priores  contrarias  abrogant.  Where  there  is  an  irrec- 
oncflable  conflict  between  different  sections  or  parts  of  the 
same  statute  the  last  words  stand,  and  those  which  are  in  con- 

1  New  Brunswick  v.  Williamson,  44  2  Hoetzel  v.  East  Orange,  50  N.  J.  L. 

N.  J.  L.  165 ;  Pausch  v.  Guerrard,  67  354 ;  Bowyer  t.  Camden,  id.  87. 

Ga.  319 ;  Mechanics'  &  Traders'  Bank  3  state  t.  Pearcy,  44  Mo.  159 ;  Peo- 

V.  Bridges,  30  N.  J.  L.  112 ;  State  v.  pie  v.  Mner,  47  111.  33. 

Miller,  id.   368 ;   Great  Central  Gas  <  Nusser  v.  Commonwealth,  25  Pa. 

Cons.  Co.  V.  Clarke,  13  Com.  B.  (N.  S.)  St.  126 ;  Keller  v.  Commonwealth,  71 

838 ;  Bramston  v.  Colchester,  6  E.  &  B.  id.  413. 

246 ;    Evansville  v.  Bayard,  39  Ind.  5  state  v.  Lewis,  5  Mo.  App.  465. 

450 ;  Willing  v.  Bozman,  52  Md.  44.  ^  Schwenke  v.  The  Union  Depot  «fe 

R  R.  Co.  7  Colo.  513. 


REPEALING    ACTS.  215 

flict  Avitli  tliem,  so  far  as  there  is  a  conflict,  are  repealed ;  ^  that 
is,  the  part  of  a  statute  later  in  position  in  the  same  act  or 
section  is  deemed  later  in  time,  and  prevails  over  repugnant 
parts  occurring  before,  though  enacted  and  to  take  effect  at  the 
same  time."  This  rule  is  applicable  where  no  reasonable  con- 
struction will  harmonize  the  parts.  It  is  presumed  that  each 
part  of  a  statute  is  intended  to  co-act  with  every  other  part ; 
that  no  part  is  intended  to  antagonize  the  general  purpose  of 
the  enactment.  To  ascertain  the  legislative  intent  every  part 
ot  an  act,  and  other  acts  in  pari  raateria,  are  to  be  considered. 
One  part  of  an  act  may  restrict  another  part  —  an  early  sec- 
tion a  later,  and  vice  ver^sa;  but  if  one  part  is  so  out  of  line 
with  other  parts  and  the  general  purpose  of  the  act  that  it  can 
only  operate  by  wholly  neutralizing  some  other  part,  then  the 
latter  provision  is  supreme  as  expressing  the  latest  will  of  the 
law-maker.  Hence,  it  is  a  rule  that  where  the  proviso  of  an. 
act  is  directly  repugnant  to  the  purview  the  latter  is  repealed 
by  it.^  Statutes  speak  from  the  time  they  take  effect,  and 
from  that  time  they  have  posteriority.^  If  passed  to  take  effect 
at  a  future  day,  they  are  to  be  construed  as  if  passed  on  that 
day  and  ordered  to  take  immediate  effect.^  Where  two  acts 
•come  into  operation  on  the  same  day,  and  are  repugnant,  the 
one  last  approved  repeals  the  other,^  unless  a  different  inten- 
tion is  expressed,^  or  it  may  be  ascertained  upon  testnnony.' 

1  Albertson  v.  State,  9  Neb.  429.  «  Rex  v.  Middlesex,  2  B.  «fe  Ad.  8ia 

2  Bac.  Abr.  tit.  Statutes,  D. ;  State  '  The  Southwark  Bank  v.  Common- 
T.  Davis,  70  IMd.  237 ;  Harrington  v.  wealth,  26  Pa  St  446.  In  this  case 
Rochester,  10  Wend.  550 ;  Branagan  it  appeared  that  the  legislature  re- 
V.  Dulaney,  8  Colo.  408 ;  Powers  v.  pealed  a  part  of  a  bill  pending  before 
Barney,  5  Blatclif.  302 ;  Southwark  the  governor,  and  he  approved  the 
Bank  v.  Commonwealth,  26  Pa  St.  repealing  statute.  Held,  that  he  had 
446,  449 ;  Elliott  v.  Lochnane,  1  Kan.  no  power  to  reinstate  the  repealed 
135 ;  Gibbons  v.  Brittenum,  56  Miss,  provision  by  subsequently  signing  the 
232.  See  Thomas  v.  Collins,  58  Jlich.  act  in  which  it  was  contained.  The 
^  relative  time  of  approval  of  acts  bear- 

'  Att'y-General   v.   Chelsea  Water  ing  the  same  date  may  be  inferred 

Works    Co.,  Fitzgib.  195 ;   Farmers'  from  the  numerical  order  of  the  acts 

Bank  v.  Hale,  59  N.  Y.  53.  as  publisliecl   Straus  v.  Heiss,  48  3Id- 

*Ante,%lQl.  292;  ^letropolitan  Board   of  Health 

5  Rice  V.  Ruddiman,  10  ]\Iich.  125 ;  v.  Schmades,  10  Abb.  Pr.  (N.  S.)  205. 

Harrington  v.  Harrington's  Est  53  See  Thomas  v.  Collins,  58  ]\Iich.  64 
Vt  649;  Metropolitan  Bd.  of  Health        '  Stiaus  v.  Heiss,  supra:  Gardner  v. 

V.  Schmades,  10  Abb.  Pr.  (N.  S.)  205.  Collector,  6  Wall  499.     In  Mead  v. 


216  REPEALING   ACTS. 

§  161.  Where  two  statutes  in  jyari  materia^  originally  en- 
acted at  different  periods  of  time,  are  subsequently  incorpo- 
rated in  a  revision  and  re-enacted  in  substantially  the  same 
language,  with  the  design  to  accomplish  the  purpose  they  were 
originally  intended  to  produce,  the  times  when  they  first  took 
effect  will  be  ascertained  by  the  courts,  and  effect  will  be  given 
to  that  which  was  the  latest  declaration  of  the  will  of  the  leg- 
islature,  if  the}^  are  not  harmonious.^  An  existing  statute  is 
not  to  be  considered  as  original  because  it  is  embodied  in  a 
revision,  and  therefore  is  not  to  be  construed  on  the  theory 
that  none  of  its  provisions  had  been  in  effect  prior  thereto. 
The  appearance  of  such  a  statute  in  the  form  and  body  of  a 
revision  has  no  other  effect  than  to  continue  it  in  force."^ 

§  162.  Effect  of  repeal. —  The  general  rule  is  that  when  an 
act  of  the  legislature  is  repealed  without  a  saving  clause,  it  is 
considered,  except  as  to  transactions  past  and  closed,  as  though 
it  had  never  existed,^  This  is  not  true  in  an  absolute  sense, 
nor  without  exception,  unless  it  is  provided  that  the  repealed 
statute  cannot  be  revived  by  the  repeal  of  the  repealing  stat- 
ute. A  repealed  law  is  indefinitely  suspended  while  the  re- 
pealing statute  is  in  force.  When  that  statute  is  repealed  its 
repealing  force  is  spent,  and  the  one  which  is  repealed  thereupon 
comes  again  into  operation.*    This  revival  would  not  ensue  if 

Bagnall,  15  Wis.  156,  it  was  held  that  v.  Arthur,  104  U.  S.  498 ;  Mobile  Sav- 

when  the  legislative  intent  is  to  be  rags  Bank  v.  Patty,  16  Fed.  Eep.  751. 

inferred  from  the  priority  of  one  act  -  City  of  St.  Louis  v.  Alexander,  23 

to  another,  regard  must  be  had  to  Mo.  509 ;  City  of  Cape  Ghardeau  v. 

the  dates  of  approval  of  the  acts  and  RUey,  52  id.  428 ;  State  ex  reL  Att'y- 

not  to  their  dates  of  pubhcation.   The  Gen'l   v.  Heidorn,  74  id.  410.     See 

court  say ;  "  It  is  time  that  general  ante,  §  134. 

laws  must  be  published  before  they  3  Curran  v.  Owens,  15  W.  Va.  208 ;, 

can  take  effect,  but  that  does  not  Surtees  v.  Elhson,  9  B.  &  C.  750 ;  But- 

make  the  printer  a  part  of  the  law-  ler  v.  Pahner,  1  HUl,  324 ;  Alabama 

making  power,  nor  enable  liim,  by  Med.  College  v.  Muldon,  46  Ala.  603 ;. 

delaying  the  pubhcation  of  one  law  Musgi'ove  v.  Vicksburg,  etc.  R.  R  Co. 

longer  than  that  of  another  which  50  Miss.  677 ;  McQuUkien  v.  Doe  ex. 

was  passed    at    the    same    time,  to  dem.  Stoddard,  8  Blackf.  581 ;  Hvmt 

cliange  the  relations  of  the  two  upon  v.  Jennings,  5  id.  195 ;  Potter's  Dwar- 

the  point  of  priority."  ris,  160. 

iWinnv.  Jones,  6  Leigh,  74;  Black-  ^  Post,  §  168;  Bac.  Abr.  tit.  Stat- 

ford  V.  Hurst,  26  Gratt.  206 ;  Hmley  ute,  D. ;  PhiUips  v.  Hopwood,  10  B.  & 

V.  Town  of  Texas,  20  Wis.  638 ;  United  C.  39 ;  Brmkley  v.  Swicegood,  65  N.  C. 

States  V.  Bowen,  100  U.  S.  508 ;  Vietor  626 ;  Smith  v.  Hoyt,  14  Wis.  252. 


REPEALING   ACTS.  217 

the  repeal  had  the  effect  of  absolute  extinguishment.'  In  the 
interpretation  of  statutes,  clauses  which  have  been  repealed 
may  still  be  considered  in  construing  the  provisions  that  re- 
main in  force.-  Where  a  doubt  exists  as  to  the  meanino:  of  a 
statute,  the  pre-existing  law,  and  the  reason  and  purpose  of  the 
new  enactment,  are  considerations  of  great  weight.^  It  is  more 
accurate  to  say  that  after  it  is  repealed  it  is,  as  regards  its 
ojDerative  effect,  considered  as  if  it  had  never  existed,  except 
as  to  matters  and  transactions  past  and  closed.*  The  repeal 
of  an  exception  extends  the  purview.^ 

§  163.  Eights  depending  on  a  statute  and  stiU  inchoate,  not 
pe'-fe^ed  by  final  judgment  or  reduced  to  possession,  are  lost 
by  repeal  or  expiration  of  the  statute.^  This  rule  applies  to 
mechanics'  liens  given  by  statute  where  the  requisite  jDroceed- 
ings  to  fix  the  lien  have  not  been  completed  at  the  date  of  the 
repeal.'  An  assessment  of  taxes  on  corporate  stock  was  made 
under  a  statute  which  was  sul)sequently  repealed.  The  col- 
lection of  the  taxes  was  regulated  by  another  law.  The  re- 
peal of  the  statute  under  which  the  assessment  had  been 
made  was  held  not  to  affect  it.  The  assessment  was  closed 
and  ended,  and  therefore  not  subject  to  the  rule  apphcable  to 

1  Home  Ins.  Co.  v.  Taxing  Dist  4  Co.  50  Miss.  677 ;  People  v.  Livingston, 
Lea,  644.  6  Wend.  526 ;  Tivey  v.  People,  8  ]\Iich- 

2  Bank  for  Savings  v.  The  Collector,  128 ;  Knox  v.  Baldwin,  80  N.  Y.  610 ; 
3  Wall.  495 ;  Crow  Dog,  Ex  parte,  109  Hampton  v.  Commonwealth,  19  Pa. 
U.  S.  556 ;  Bates  v.  Clark,  95  U.  S.  204 ;  St  329 ;  State  v.  Baldwm,  45  Conn, 
Attorney-General  v.  Lamplough,  L.  R.  134 ;  Bay  City,  etc.  R.  R.  Co.  v,  Austin, 
3  Ex.  D.  223 ;  Commonwealth  v.  Bai-  21  IVIich.  390 ;  Bennetv.  Hargus,  1  Neb. 
ley,  13  Allen,  541 ;  Flanders  v.  Merri-  419 ;  Wilhams  v.  Mddlesex,  4  Met.  76 ; 
mack,  48  Wis.  567.  Oriental  Bank  v.  Freese,  18  Me.  109 ; 

»Smythev.  Fiske,  23WalL374,  380;  BaUey  v.  Mason,  4  Minn.  546;  The 

Heydon's  Case,  3  Rep.  76.  Schooner  Rachel  v.  United  States,  6 

*  Attorney-General  v.  Lamplough,  Cr.  329 ;  Coffin  v.  Rich,  45  Me.  507 ; 

supra.  Gregory  v.  German  Bank,   3  Colo. 

s  Smith     V.    Hoyt,    14    Wis.    253;  332;  S.  C.  25  Am.  Rep.  760;  Gaul  v. 

Goodno  V.  Oshkosh,  31  id.  127 ;  Bank  Brown,  53  Me.  496 ;  Cm-tis  v.  Leavitt, 

for  Savmgs  v.  The  Collector,  3  WalL  15  N.  Y.  152.    See  Restall  v.  London, 

495.  etc.  R'y  Co.  L.  R.  3  Ex.  141,  which  is 

s  Bechtol  V.  Cobaugh,  10  S.  &  R.  dissented  from  in  Butcher  v.  Hender- 

121 ;  Van  Inwagen  v.  Chicago,  61  IlL  son.  L.  R  3  Q.  B.  335.  See,  also,  Mor- 

31 ;   Town  of  Belvidere   v.   Warren  gan  v.  Thorne,  7  M.  &  W,  400. 

R.  R.  Co.  34  N.  J.  L.  193 ;  S.  C.  35  id.  '  Bailey  v.  Mason,  4  Minn,  546. 
587 ;  Musgrove  v.  Vicksburg,  etc.  R  R 


218  REPEALING   ACTS. 

pendiEg  proceedings  when  the  law  under  which  they  were 
commenced  has  been  repealed.'  There  was  a  sentence  of  con- 
demnation of  a  vessel  for  trading  contrary  to  a  temporary  act 
of  congress ;  the  vessel  had  been  sold"  and  the  proceeds  paid 
over  to  the  government  whUe  the  law  was  in  force.  Pending 
an  appeal  from  the  sentence  the  act  expired.  It  was  held 
that  the  sentence  could  not,  under  such  circumstances,  be  af- 
firmed after  the  expiration  of  the  law,  and  restitution  was 
ordered.-  An  informer  who  commences  a  qid  tarn  action 
under  a  penal  statute  does  not  thereby  acquire  a  vested  right 
to  the  forfeiture ;  his  claim  to  the  penalty  is  inchoate,  and  can- 
not be  fixed  except  by  judgment.  The  repeal  of  the  statute 
before  judgment  prevents  the  imperfect  right  from  being 
consummated.  It  matters  not  whether  the  whole  penalty 
when  received  is  given  to  the  ]3ublic  or  to  the  informer,  or  is 
divided  between  them.^ 

§  164.  When  a  right  has  arisen  on  a  contract,  or  a  transac- 
tion in  the  nature  of  a  contract  authorized  by  a  statute,  and 
has  been  so  far  perfected  that  nothing  remains  to  be  done  by 
the  party  asserting  such  right,  the  repeal  of  the  statute  will 
not  affect  it  or  an  action  for  its  enforcement.  It  has  become 
a  vested  right  which  stands  independently  of  the  statute.*  A 
contractor  for  grading  streets  was  authorized  by  the  existing 
law  to  sue  delinquent  abutters  for  unpaid  assessments.  This 
right  of  action  was  held  a  part  of  the  contract  and  not  taken 
away  by  repeal  of  the  law  creating  it.^  Causes  of  action 
barred  by  the  statute  of  limitations  are  not  revived  by  a  re- 
peal of  the  statute."  The  repeal  of  a  statute  giving  a  lien  for 
advances  of  money  for  certain  purposes  wOl  not  affect  the  lien 
as  to  such  advances  as  were  made  prior  thereto.^  Eights 
that  pass  and  become  vested  under  the  existing  law  are  sup- 
posed to  be  beyond  the  control  of  the  state  through  its  legis- 

1  Town  of  Belvidere  v.  Warren  R.  <  Pacific  Mail  Steamship  Co.  v.  Jol- 
R.  Co.  34  N.  J.  L.  193.  iffe,  2  WaU.  450. 

2  The  Schooner  Rachel  v.  United        ^Creighton  v.  Pragg,  21  Cal.  115. 
States,  6  Cr.  329 ;  Yeaton  v.  United        ^  Cassity  v.   Storms,   1   Bush,  453 
States,  5  id.  281.  Right  v.  Martin,  11  Ind.  123 ;  Coole/s 

3  Bank  of  St  Marys  v.  State,  12  Ga.  Const.  L.  *365. 

475.  ■•  Commissioners  v.  Northern  Bank, 

1  Met  (Ky.)  174. 


REPEALING    ACTS.  219 

lature.'  A  mere  change  of  the  law  does  not  divest  or  im- 
pair rights  of  property  acquired  previously,  even  though  the 
legislature  intended  the  new  law  so  to  operate.-  A  law 
can  be  repealed  by  the  law-giver;  but  the  rights  which  have 
been  acquired  under  it  while  it  was  in  force  do  not  thereby 
cease.  It  would  be  an  act  of  absolute  injustice  to  abolish  with 
a  law  all  the  effects  which  it  had  produced.  This  is  a  princi- 
ple of  general  jurisprudence ;  but  a  right  to  be  within  its  pro- 
tection must  be  a  vested  right.  It  must  be  something  more 
than  a  mere  expectation  based  upon  an  anticipated  continuance 
of  the  existing  law.  It  must  have  become  a  title,  legal  or 
equitable,  to  the  present  oi*  future  enjoyment  of  property,  or 
to  the  present  or  future  enforcement  of  a  demand,  or  a  legal 
exemption  from  a  demand  made  by  another.^  If,  before  rights 
become  vested  in  particular  individuals,  the  convenience  of  the 
state  induces  amendment  or  repeal  of  the  laws,  these  indi- 
viduals have  no  cause  to  complain.'*  The  legislature,  unre- 
strained by  any  constitutional  provision,  may  grant  an  exclu- 
sive franchise,^  but  the  grant  will  be  strictly  construed  and 
must  be  clearly  expressed.^  It  is  competent  for  the  legislature, 
after  granting  to  one  person  or  a  corporation  a  franchise  which 
affects  the  rights  of  the  public,  to  grant  a  similar  franchise  to 
another  person  or  corporation,  though  the  use  of  the  latter 
should  impair  or  even  destroy  the  value  of  the  first  franchise ; 
and  this  grant  does  not  depend  on  a  reservation  of  the  power 
in  the  original  grant.^    Nothing  but  plain  English  words  wUl 

1  Rice  V.  R   R  Co.  1  Black,  358 ;  bois,  16  N.  J.  L.  285 ;  Graham  v.  Chi- 

Mitchell    V.    Doggett,    1     Fla.    356;  cago,  etc.   R  R   Co.  53   Wis.  473; 

Naught  V.  Oneal,  1  111.  36 ;  James  v.  Grey  v.  IMobile  Ti-ade  Co.  55  Ala,  387 ; 

Dubois,  16  N.  J.  L.  285 ;  Den  v.  Rob-  Streubel  v.  Milwaukee,  etc.  R.  R  Co. 

inson,  5  id.  689 ;  McMechen  v.  Mayor,  12  AVis.  67 ;  Asi)iiiwall  v.  Daviess  Co. 

etc.  2  H.  &  J.  41 ;  Davis  v.  IMinor,  1  22  How.  364 ;  Bennet  v.  Hargus,  1 

How.  (Miss.)  183;  Taylor  v.  Rushing,  Neb.  419;  Kent's  Com.  455;  2  Story 

2  Stew.  (Ala.)  160 ;  Graham,  Ex  parte,  on  Const  §  1399.    See  Wolfe  v.  Hen- 

13  Rich.  277.  derson,  28  Ark.  304. 

■^  Rock  HiU  College  v.  Jones,  47  Md  *  McrrUl  v.  Sherburne,  1  N.  H.  2ia 

1, 17.  5  Slaughter-House  Cases,  16  WalL 

3  Id. ;  Cooley,  Const.  Lim.  359 ;  Mer-  36. 

rill  V.  Sherburne,  1  N.  H.  213 ;  WUd-  <•  Id. 

erman  v.  Baltimore,  8  Md.  551 ;  State  7  The  Charles  River  Bridge  v.  The 

V.  Warren,   28  id.   338 ;  Wortheu  v,  W\irrcn  Bridge,  11  Pet  420 ;  ]\Iohawk 

RatcUffe,  42  Ark.  330 ;  James  v.  Du-  Bridge  Co.  v.  Utica,  etc.  R  R  Ca  6 


220 


EEPEALING   ACTS. 


grant  an  exclusive  franchise,  and  thus  create  a  monopoly.^ 
The  repeal  of  a  statute  after  judgment  will  not  defeat  an  ap- 
peal previously  taken.^  And  if  the  statute  be  essential  to  that 
judgment,  its  repeal  or  expiration  after  the  appeal  will  neces-- 
sitate  a  reversal  of  the  judgment.^ 

A  statutory  right  is  to  be  distinguished  from  the  remedy 
for  its  enforcement.  But  after  the  right  has  vested  it  can- 
not be  taken  away  by  new  legislation  directly  against  the 
right  nor  indirectly  by  taking  away  the  remedy.*  The  remedy 
may  be  changed.'^  And  of  this  nature  are  statutes  changing 
the  rules  of  evidence "  or  the  competency  of  witnesses.^  ]^ew 
statutes  may  be  valid  which  take  away  defenses  based  on 
irregularities  and  informahties,^  by  vahdating  contracts  exe- 
cuted without  compliance  with  a  statute,^  or  in  violation  of 
some  statutory  prohibition.^*^   AYhen  a  remedy  upon  a  contract 


Paige,  554;  Oswego  Bridge  Co.  v. 
Fish,  1  Barb.  Ch.  547;  Fort  Plain 
Bridge  Co.  v.  Smith,  30  N.  Y.  44. 

1  Pennsylvania  R.  R.  Co.  v.  Canal 
Commissioners,  21  Pa.  St.  22 ;  Rich- 
mond R.  R.  Co.  V.  Louisa  R.  R.  Co.  13 
How.  71 ;  Chenango  Bridge  Co.  v. 
Bmghamton  Bridge  Co.  27  N.  Y.  87. 

2  Backes  v.  Dant,  55  Ind.  181. 

■^  The  Schooner  Rachel  v.  United 
States,  6  Cr.  329 ;  Yeaton  v.  United 
States,  5  id.  281. 

■*  Cooley's  Const  Luu.  *361 ;  Less- 
ley  V.  Phipps,  49  Miss.  790. 

5  The  Hickory  Tree  Road,  43  Pa.  St. 
139;  Farmer  v.  People,  77  IlL  322; 
Knoup  V.  Piqua  Bank,  1  Ohio  St  603 ; 
Danf orth  v.  Smith,  23  Vt  247 ;  Cool- 
ey's Const  Lun.  *287,  361,  362 ;  Colby 
V.  Dennis,  36  Me.  9,  13 ;  Musgrove  v. 
Vicksburg,  etc.  R.  R.  Co.  50  Miss. 
677 ;  Dean  v.  MeUard,  15  C.  B.  (N.  S.) 
19 ;  Linton  v.  Blakeney,  etc.  Society, 
3  H.  &  C.  853 ;  Templeton  v.  Home, 
82  IlL  491 ;  Harris  v.  Townishend,  56 
Vt  716 ;  Mechanics'  and  Farmers'  B'k, 
31  Conn.  63 ;  Treasurer  v.  Wygall,  46 
Tex.  447 ;  Stocking  v.  Himt  3  Denio, 
274;  Supervisors  v.  Briggs,  id.  173; 
Matter  of  Palmer,  40  N.  Y.  561 ;  Dis- 


mukes  v.  Stokes,  41  Miss.  431 ;  Mas- 
tronada  v.  State,  60  JVIiss.  86.  See  New- 
som  V.  Greenwood,  4  Oregon,  119. 

6  Herbert  v.  Fasten,  43  Ala,  547 
Stephenson  v.  Osborne,  41  Miss.  119 
Jom-neay  v.  Gibson,  56  Pa,  St  57,  60 
Fogg  V.  Holcomb,  64  Iowa,  621. 

■^  Lauglilin  v.  Commonwealth,  13 
Bush,  261. 

8  Cooley's  Const  Lim.  *371  et  seq. 

SDulany's  Lessee  v.  Tilgliman,  6 
G.  &  J.  461 ;  Andrews  v.  RusseU,  7 
Blackf.  474;  Parmelee  v.  Lawrence, 
48  111  331 ;  Webber  v.  Howe,  36  Mich. 
150 ;  Journeay  v.  Gibson,  56  Pa.  St. 
57 :  Carpenter  v.  Pennsylvania,  17 
How.  456;  Estate  of  Sticknoth,  7 
Nev.  223 ;  Dentzel  v.  Waldie,  30  CaL 
138. 

10  Gibson  v.  Hibbard,  13  Mich.  215  ; 
Ewell  V.  Daggs,  108  U.  S.  143 ;  SjTa- 
cuse  Bank  v.  Davis,  16  Barb.  188; 
Harris  v.  Rutledge,  19  Iowa,  388; 
State  V.  Norwood,  12  Md.  195 ;  State 
V.  Newark,  25  N.  J.  L.  399 ;  Lewis  v. 
McElvain,  16  Oliio,  347;  Savmgs 
Bank  v.  Allen,  28  Conn.  97 :  Cooley's 
Const  Lim.  *374  et  seq.  See  New 
York,  etc.  R.  R  Co.  v.  Van  Horn,  5": 
N.  Y.  473. 


EEPEALING    ACTS. 


221 


not  unlawful  is  prohibited,  a  repeal  of  tlie  statute  will  restore 
the  remedy.^  An  act  which  forbids  a  corporation  to  set  up  the 
defense  of  usury  repeals  as  to  such  corporation  the  la^vs  against 
usury,  and  a  repeal  of  such  laws  will  cut  off  the  defense  of 
usury  upon  contracts  previously  made.^  If  there  has  been  a 
change  or  alteration  or  repeal  of  the  law  applicable  to  the 
rights  of  the  parties,  after  the  rendition  of  the  original  judg- 
ment, and  pending  an  appeal,  the  case  must  be  heard  and  de- 
cided in  the  appellate  court,  according  to  the  existing  law.^ 

§  165.  Powers  derived  wholly  from  a  statute  are  extin- 
guished by  its  repeal.  AU  acts  done  under  a  statute  w^hilst 
it  was  in  force  are  good ;  but  if  a  proceeding  is  in  progress,  in 
fie?^,  when  the  statute  is  repealed,  and  the  powders  it  confers 
cease,  it  fails,  for  it  cannot  be  pursued.''    "Where  a  jurisdiction 


1  Johnson  v.  Meeker,  1  Wis.  436. 

2  Ewell  V.  Daggs,  108  U.  S.  143. 

3  Musgrove  v.  Vicksburg,  etc.  R  R. 
Co.  50  ]\Iiss.  677 ;  Lewis  v.  Foster,  1 
N.  H.  61 ;  Speckert  v.  Louisville,  78 
Ky.  287;  State  v.  Daley,  29  Conn. 
272;  AtweU  v.  Grant,  11  Md.  104; 
Keller  v.  State,  12  id.  335 ;  Price  v. 
Nesbitt,  29  id.  263 ;  Mayor  of  Annap- 
olis V.  State,  30  id.  112;  Wade  v.  St 
Mary's  School,  43  id.  178 ;  Hartung  v. 
People,  22  N.  Y.  95 ;  United  States  v. 
The  Peggy,  1  Cr.  103 ;  Sheppard  v. 
State,  1  Tex.  App.  522. 

*  Bac.  Abr.  tit  Statute,  D. ;  Road  in 
Hatfield  Township,  4  Yeates,  392; 
Veats  V.  Danbury,  37  Conn.  412; 
Stoever  v.  ImmeU,  1  Watts,  258 ;  Com- 
monwealth V.  Beatty,  id,  382 ;  Gille- 
hind  V.  Schuyler,  9  Kan.  569 ;  Church 
V.  Rhodes,  6  How.  Pr.  281 ;  Smith  v. 
Arapahoe  Dist  Ct  4  Colo.  235 ;  State  v. 
Brookover,  22  W.  Va.  214 ;  New  Lon- 
don Northern  R.  R.  Co.  v.  Boston,  etc. 
R  R  Co.  102  Mass.  389 ;  Sprmgfield 
V.  Commissionex's,  6  Pick.  501 ;  McRee 
V.  M'Lemore,  8  Heisk.  440.  See  Downs 
v.  Town  of  Himtington,  35  Conn,  588 ; 
Macnawhoc  Plantation  v.  Thompson, 
86  Ma  365 ;  Illmois,  etc.  Canal  v.  Clii- 
cago,  14  nL  334 ;  Uwclilan  Township 


Road,  30  Pa,  St  156 ;  Himt  v.  Jen- 
nings, 5  Blackf.  195;  WiUiams  v. 
Middlesex,  4  Met  76 ;  Stephenson  v. 
Doe,  8  Blackf.  508 ;  James  v.  Dubois, 
16  N.  J.  L.  285 ;  Petition  of  Fenelon, 
7  Pa.  St  173 ;  South  CaroUna  v.  Gail- 
lard,  101  U.  S.  433 ;  Hampton  v.  Com- 
monwealth, 19  Pa,  St  329 ;  Common- 
wealth V.  Standard  Oil  Co.  101  Pa.  St 
119 ;  Hohnes  t.  French,  68  Me.  525 ; 
Wame  v.  Beresf  ord,  2  M.  &  W.  848 ; 
Bucher  v.  Henderson,  L.  R  3  Q.  B. 
335 ;  Todd  v.  Landry,  5  Martin,  459 ; 
S.  C.  12  Am.  Dec.  479. 

The  city  of  Evansville  passed  an 
ordinance  for  the  improvement  of 
streets  pursuant  to  a  power  given  in 
the  charter.  It  was  held  that  the  subse- 
quent repeal  of  the  section  conferring 
the  power  did  not  affect  the  ordi- 
nance. Chamberlain  v.  Evansville, 
77  Ind.  542 ;  Dashiell  v.  Baltimore,  45 
Md.  615.  In  March,  1875,  a  trader 
committed  an  act  of  bankruptcy, 
upon  which  a  commission  might  have 
issued  under  tlie  statutes  then  in 
force.  On  May  1st  these  statutes  were 
repealed.  On  May  2d  tlie  repealing 
act  was  repealed  and  the  former  acts 
thereby  revived.  In  July  a  commis- 
sion of  bankruptcy  issued.    Held,  it 


222 


REPEALING   ACTS. 


conferred  by  statute  is  prohibited  by  a  subsequent  statute,  or  the 
law  conferring  it  is  repealed,  the  jurisdiction  ceases  and  causes 
pending  at  the  time  fail,  and  no  costs  are  recoverable  by  either 
party  unless  saved  by  provisions  of  the  repealing  law.^  If  pur- 
sued the  proceedings  will  be  void,'-  but  they  may  subsequently 
be  validated  in  certain  cases,  as  when  intended  to  estabhsh  a 
public  rather  than  a  private  charge  or  liability.^  Jurisdiction 
may  be  taken  away  by  repeal  of  the  statutes  conferring  it  by 
necessary  implication  as  weU  as  by  express  words.*  An  ap- 
plication was  made  to  the  court  of  quarter  sessions  for  the  dis- 
charge of  a  prisoner  under  an  insolvent  debtor  act,  and  every 
requisite  was  complied  with  by  the  debtor ;  but  the  court  vol- 
untarily, and  without  his  application,  adjourned  the  matter  to 
a  subsequent  day,  before  which  the  act  was  repealed.  On 
motion  for  a  mandamus  to  the  sessions  to  proceed  to  dis- 
charge him  the  court  of  king's  bench  refused  to  grant  it,  as  no 
act  of  jurisdiction  could  be  done  by  the  sessions  after  the  re- 
peal of  the  statute,  though  the  proceeding  had  begun  before.* 


was  supported  by  the  act  of  bank- 
ruptcy in  March.  Lord  Tenterden : 
"  We  find  certain  statutes  in  force  in 
March,  1825,  when  the  act  of  bank- 
ruptcy was  committed,  and  we  find 
the  same  statutes  in  force  in  July 
when  the  commission  issued.  It  ap- 
pears to  me  that  the  case  is  not  af- 
fected by  anything  that  passed  in  the 
interval  The  5  Geo.  IV.,  ch.  98,  hav- 
ing been  repealed,  is  to  be  considered, 
as  far  as  this  question  is  concerned, 
as  if  it  had  never  existed."  PhiUips 
V.  Hopwood,  10  B.  &  C.  39. 

1  HoUingsworth  v.  Virginia,  3  DalL 
378 :  Merchants'  Ins.  Co.  v.  Ritchie,  5 
Wall.  541 ;  United  States  v.  Boisdore, 
8  How.  113 ;  Grant  v.  Grant,  13  S.  C. 
29 ;  S.  C.  32  Am.  Rep.  506 ;  McNulty 
V.  Batty,  10  How.  72 ;  Ex  parte  McCar- 
dle,  7  WaU.  506;  Assessors  v.  Os- 
bomes,  9  id.  567 ;  United  States  v.  Ty- 
nen,  11  id.  88 ;  Baltimore,  etc.  R.  R. 
Co.  V.  Grant,  98  U.  S.  398 ;  Rice  v. 
Wright,  46  Miss.  679 ;  Lamb  v.  Schot- 
tler,  54  CaL  319 ;  Smith  v.  Arapahoe 


Dist.  Ct.  4  Colo.  235;  Wade  v.  St 
Maiy's  Industrial  School.  43  Md. 
178;  Saco  v.  Gurney,  34  Me.  14; 
Miller's  Case,  1  W.  Black,  451 ;  Yea- 
ton  V.  United  States,  5  Cr.  281 ;  Spring- 
field V.  Commissioners  of  H.  6  Pick. 
501 ;  Commonwealth  v.  Marshall,  11 
id.  350 ;  Commonwealth  v.  Kjmball, 
21  Pick.  373 ;  Thayer  v.  Seavey,  11  Me. 
284 ;  Cummings  v.  Chandler,  26  Ma 
453. 

2  North  Canal  Street,  10  Watts,  351 
Chm-ch  V.  Rhodes,  6  How.  Pr.  281 
Morgan  v.  Thorne,  7  M.  &  W.  400 
Petition  v.  Fenelon,  7  Pa.  St.  173 
Bank  of  Hamilton  v.  Dudley,  2  Pet 
492. 

*  In  re  Pennsylvania  HaU,  5  Pa.  St 
204.  See  Cooley's  Const  Lun.  *371 ; 
Plantation  No.  9  v.  Bean,  36  Me.  359. 

4  Cates  V.  Knight  3  T.  R.  442 ;  Crisp 
V.  Bunbviry,  8  Bing.  394 ;  New  Lon- 
don N.  R.  R.  Co.  V.  Boston,  etc.  R  R 
Co.  102  Mass.  386. 

5  Rex  V.  Justices  of  London,  3  Burr. 
1456 ;  Miller's  Case,  1  W.  Black.  451. 


EEPEALING    ACTS. 


223 


§166.  Effect  of  repeal  of  a  penal  statute. —  The  repeal 
or  expiration  of  a  statute  imposing  a  penalty  or  forfeiture  will 
prevent  any  prosecution,  trial  or  judgment  for  any  offense 
committed  against  it  while  it  was  in  force,  unless  the  contrary 
is  provided  in  the  same  or  some  other  existing  statute.' 
"Where  a  penal  statute  is  so  modified  as  to  exempt  a  class  from 
its  operation,  violations  by  such  exempted  class  before  such 
modification  took  effect  cannot  be  prosecuted  afterwards.^ 
If  a  penal  statute  is  repealed  pending  an  appeal  and  before 
the  final  action  of  the  ap])ellate  court,  it  will  prevent  an  affirm- 
ance of  a  conviction,  and  the  prosecution  must  be  dismissed  or 
the  judgment  reversed.*  A  final  judgment  before  repeal  is 
not  affected  by  it.*     The  repeal  operates  as  a  pardon  of  all 


1  Yeaton  v.  United  States,  5  Cr.  281 ; 
Commonwealth  v.  Marshall,  11  Pick. 
350;  Commonwealth  v.  Pattee,  13 
Cush.  501 ;  Heakl  v.  State,  3G  Me.  62 ; 
Mayers  v.  State,  7  Ark.  68 ;  Roberts  v. 
State,  2  Overt.  423 ;  Bennett  v.  State, 
2  Yerg.  472 ;  Brothers  v.  State,  2  Cold. 
201 ;  Higginbotham  v.  State,  19  Fla. 
557 ;  Leftwiche's  Case,  5  Rand.  657 ; 
Scutt's  Case,  2  Va.  Cas.  54 ;  Bank  of 
St  Mary's  v.  State,  12  Ga.  475 ;  State 
V.  Nutt,  Phil.  L.  20 ;  Carlisle  v.  State, 
42  Ala.  523 ;  Governor  v.  Howard,  1 
Mm-phy,  465 ;  State  v.  Banks,  12  Rich. 
609 ;  Commonwealth  v.  Cain,  14  Bush, 
525 ;  State  v.  Addmgton,  2  Bailey,  516 ; 
United  States  v.  Finlay,  1  Abb.  (U.  S.) 
364 ;  The  Irresistible,  7  Wheat.  551 ; 
Duane's  Case,  1  Bum.  601 ;  Bay  City, 
etc.  R.  R.  Co.  v.  Austin,  21  Mich.  390 ; 
United  States  v.  Six  Fermenting  Tubs, 

1  Abb.  (U.  S.)  268;  Mastronada  v. 
State,  60  Miss.  86 ;  Mayor,  etc.  v.  State, 
30  Md.  112 ;  Commonwealth  v.  Welch, 

2  Dana,  330 ;  Harrison  v.  AUen,  Wythe 
(Va.),  291 ;  Stoever  v.  ImmeU,  1  Watts, 
258. 

2  Commonwealth  v.  Welch,  2  Dana, 
330. 

3  State  V.  King,  12  La,  Ann.  593 ; 
Mouras  v.  The  A.  C.  Brewer,  17  id. 
82 ;  KeUer  v.  State,  12  Md.  322 ;  Lewis 
V,  Foster,  1  N.  H.   61;  Speckert  v. 


Louisville,    78    Ky.    287;    Common- 
wealth v.  Sherman,  85  id.  686. 

4  People  V.  Hobson,  48  Mich.  27; 
State  V.  Addington,  2  Bailey,  516. 
See  Aaron  v.  State,  40  Ala.  307 ;  Rex 
V.  Davis,  1  Leach,  C.  C.  271 ;  Rex  v. 
Heath,  2  East.  P.  C.  609 ;  Rex  v.  Mc- 
Keuzie,  R.  &  R.  C.  C.  429 ;  Leschi  v. 
Territory,  1  Wash.  T'y,  13 ;  Saco  v. 
Gurney,  34  Me.  14 ;  Gaul  v.  Brown, 
53  Me.  496 ;  Welch  v.  Wadsworth,  30 
Conn.  149 ;  Heald  v.  State,  36  Me.  62 ; 
Broughton  v.  Branch  Bank,  17  Ala. 
828;  Taylor  v.  State,  7  Blackf.  93; 
State  V.  Loyd,  2  Ind.  659 ;  Thompson 
V.  Bassett,  5  id.  535 ;  State  v.  O'Con- 
ner,  13  La.  Ann.  486 ;  State  v.  Cress, 
4  Jones  (N.  C),  421;  State  v.  Van 
Sti'alen,  45  Wis.  437 ;  State  v.  Camp- 
beU,  44  id.  529 ;  State  v.  Lagersoll,  17 
Wis.  631 ;  Fisher  v.  N.  Y.  etc.  R  R. 
Co.  46  N.  Y.  644 ;  Calkms  v.  State,  14 
Ohio  St.  222 ;  Wood  v.  Kennedy,  19 
Ind.  68 ;  State  v.  Fletcher,  1  R.  I.  193 ; 
Greer  v.  State,  22  Tex.  588 ;  Town  of 
Belvidere  v.  Warren  R  R  Co.,  34 
N.  J.  L.  193 ;  S.  C.  m  error,  35  id.  584 ; 
Snell  V.  CampbeU,  24  Fed.  Rep.  880 ; 
Mulkey  v.  State,  16  Tex.  App.  53; 
State  V.  Long,  78  N.  C.  571 ;  Hubbard 
V.  State.  2  Tex.  App.  506;  Montgom- 
ery V.  State,  id.  618 ;  Rood  v.  Chicago, 
etc.  R'y  Co.  43  Wis.  146;   State  v. 


224  EEPEALING   ACTS. 

offenses  against  it  ^  and  a  bar  to  any  subsequent  prosecution.' 
There  can  be  no  legal  conviction  for  an  offen'se  unless  the  act 
be  contrary  to  law  at  the  time  it  is  committed;  nor  can  there 
be  judgment  unless  the  law  is  in  force  at  the  time  of  the  indict- 
ment and  judgment." 

Where  a  statute  imposes  a  penalty  for  an  injurious  act  done 
to  the  rights  of  others,  such  penalty  to  be  recovered  by  the 
party  aggrieved ;  it  is  in  the  nature  of  a  satisfaction  to  him,  as 
well  as  a  punishment  of  the  offender.  In  such  a  case,  the 
plaintiff  is  said  to  have  acquired  a  vested  right  to  the  penalty 
as  soon  as  the  offense  is  committed,  and  a  general  repeal  of  the 
statute  after  action  accrued  does  not  affect  that  right.*  An 
ordinance  passed  pursuant  to  a  power  in  a  city  charter  is  not 
invalidated  by  repeal  of  the  provision  granting  the  power.* 
While  a  convict  in  the  state  prison  was  Hable  to  additional 
punishment  under  a  statute  in  force  at  the  time  of  sentence 
and  commitment,  in  consequence  of  having  been  twice  convicted 
and  sentenced  to  confinement,  a  statute  was  passed  so  modi- 
fying the  previous  statute  that  a  convict  would  be  liable  to 
additional  punishment  only  in  case  he  had  been  twice  dis- 
charged from  imprisonment.  Before  the  prisoner  was  released 
fi'om  confinement  under  his  second  sentence  the  modifying 
statute  was  repealed.  It  was  held  that  such  statute  operated 
to  suspend,  so  long  as  it  remained  in  force,  but  not  to  discharge, 
the  prisoner's  liabihty  to  additional  punishment.^ 

§  167.  Saving  clauses. —  The  effect  of  repeal  upon  inchoate 
rights,  upon  offenses  and  upon  incomplete  proceedings  may 

Gumber,  37  Wis.   298 ;  Union  Iron        *  President,  etc.  of  L.  v.  HaiTison, 

Co.  V.  Pierce,  4  Biss.   327 ;  State  v.  9  B.  &  C.  524 ;  Company  of  Cutlers 

Brewer,  22  La.  Ann.  273.  v.  Ruslin,   Skinner,  363 ;   Palmer  v. 

1  Wharton  v.  State,  5  Cold.  1.  Conly,  4  Denio,  374 ;   S.  C.  2  N.  Y. 

2  Howard  v.  State,  5  Ind.  183 ;  Grif-  182 ;  Thompson  v.  Howe,  46  Barb, 
fin  V.  State,  39  Ala.  541 ;  Genkinger  287 ;  Harris  v.  Townshend,  56  Vt  716 ; 
V.  Commonwealth,  32  Pa.  St  99 ;  Wall  Graham  v.  Cliicago,  etc.  R.  R.  Co.  53 
V.  State,  18  Tex.  682.  Wis.  473 ;  Grey  v.  Mobile  Trade  Co. 

3  Commonwealth    v.    Marshall,   11  55  Ala,  387.    See  Union  Iron  Co.  v. 
Pick.    350 ;    Commonwealth    v.   Mc-  Pierce,  4  Biss.  327 ;  Bay  City,  etc.  R 
Donough,   13  AUen,   581 ;  Common-  R.  Co.  v.  Austin,  21  jVIich.  390, 
wealth  V.  Kimball,  21  Pick.  373 ;  Har-        5  Chamberlain  v.  Evansville,  77  Ind. 
tung  V.  People,  23  N.  Y.  95 ;  Pitman  542. 

V.  Commonwealth,  2  Rob.  (Va.)  813 ;  ^  Commonwealth  v.  Getchell,  16 
State  V.  Daley,  29  Conn.  272.  Pick.  452.      See  Commonwealth   v. 

Mott,  21  Pick.  492. 


KEPEALING    ACTS. 


225 


be  avoided  by  a  saving  clause  providing  that  it  shall  not 
affect  such  rights,  prosecutions  for  such  offenses,  or  such  pro- 
ceedingSji  or  by  a  general  statute  for  that  purpose.  Such 
general  statutes  have  been  enacted  in  nearly  all  of  the  states 
as  well  as  by  congress.^  The  provision  in  the  Iowa  statute 
may  be  regarded  as  a  typical  one  of  this  sort :  ^  "  The  repeal 
of  a  statute  does  not  revive  a  statute  previously  repealed,  nor 
affect  any  right  which  has  accrued,  any  duty  imposed,  any 
penalty  incurred,  or  any  proceeding  commenced,  under  and 
by  virtue  of  the  statute  repealed."  A  tax  voted  and  levied 
was  held  to  be  saved  by  that  provision,  though  the  statute 
under  which  the  tax  was  so  levied  was  repealed  before  the 
collection  of  the  tax.*  Such  a  general  provision  has  the  same 
effect  as  a  sa\dng  clause  in  the  repealing  statute.^  A  saving 
clause  is  intended  to  save  something  which  would  otherwise 
be  lost."  An  act  granting  review  after  judgment  was  repealed 
"  saving  all  actions  pending ; "  this  saving  was  held  to  mean 
a  saving  of  something  out  of  that  which  was  repealed,  and 
therefore  to  save  pending  petitions  for  review.'^    It  may  em- 


iPeoplev.  GUI,  7Cal.  356. 

2  See  United  States  v.  Reisinger,  128 
U.  S.  398. 

3  Iowa  Code  (1888),  §  49,  par.  1. 

4  Tobin  V.  Hartshorn,  69  Iowa,  648. 

5  Cedar  Rapids,  etc.  R'y  Co.  v.  Carroll 
Co.  41  Iowa,  153 ;  Dillon  v.  Linder,  36 
Wis.  344 ;  Bui-liugtou  v.  Biu'lington, 
etc.  R'y  Co.  41  Iowa,  134;  Bartiiiflf 
V.  Remey,  15  id.  257 ;  Cliicago,  etc.  R. 
R  Co.  V.  Hartshorn,  30  Fed  Rep.  541 ; 
United  States  v.  Barr,  4  Sawy.  254 ; 
Garland  v.  Hickey,  75  Wis.  178 ;  Har- 
ris V.  Townshend,  56  Vt  716 ;  Jones 
V.  State,  1  Iowa,  395 ;  Volmer  v.  State, 
34  Ark.  487 ;  Sanders  v.  State,  77  Ind. 
227;  Tempe  v.  State,  40  Ala.  350; 
State  V.  Ross,  49  Mo.  416;  Treat  v. 
Strickland,  23  Ma  234 ;  Hine  v.  Pome- 
roy,  39  Vt  211 ;  State  v.  Boyle,  10 
Kan.  113;  State  v.  Crawford,  11  id. 
S3;  Ballin  v.  Ferst,  55  Ga,  546; 
McCuen  v.  State,  19  Ark.  634 ;  Peo- 
ple v.  Sloan,  2  Utah,  326 ;  McCalmeut 
V.  State,  77  Ind.  250 ;  Fowle  v.  Kirk- 

15 


land,  18  Pick.  299 ;  Barton  v.  Gads- 
den, 79  Ala.  495 ;  Grace  v.  Donovan, 
12  aiinn.  580 ;  Pacific,  etc.  TeL  Co.  v. 
Commonwealth,  66  Pa.  St  70 ;  Mon- 
geon  V.  People,  55  N.  Y.  613. 

6  Colby  V.  Dennis,  36  'Me.  9,  12. 

^  IcL  When  a  real  action  was  com- 
menced a  statute  was  in  force  which 
provided  that  if  either  of  the  de- 
mandants should  die  dm-ing  the 
pendency  of  a  real  action  his  death 
should  be  suggested  on  the  record, 
and  that  the  survivor  might  amend 
his  declaration  by  describing  liis  in- 
terest in  the  premises  and  proceed 
in  the  cause  to  final  judgment  Dur- 
ing the  pendency  of  the  action  the 
statutes  were  revised  so  as  to  repeal 
that  provision,  but  the  revision  con- 
tained these  saving  clauses :  That  all 
real  actions  which  shaU  be  pending 
"  shall  proceed  and  be  conducted  to 
final  judgment  or  other  final  dis- 
posal, in  like  manner  as  if  this  chaj^- 
ter  had  never  been  enacted ;  "  in  an- 


226  BEFEALING   ACTS. 

brace  an  inchoate  right  as  well  as  the  remedy  for  its  enforce- 
ment when  it  matures.^  A  saving,  that  actions  pending  at 
the  time  of  the  repeal  or  passage  of  an  act  shall  not  be  af- 
fected thereby,  does  not  include  proceedings  in  insolvency,^ 
nor  a  petition  pending  before  county  commissioners  for  the 
location  of  a  highway.*  A  municipal  appropriation  within  the 
restrictions  of  the  charter,  -vvhen  made,  is  not  affected  by  a 
subsequent  statute  so  changing  the  limit  that  such  appropria- 
tion would  exceed  it,  where  the  new  statute  contains  a  pro- 
vision that  "  nothing  in  this  act  shall  in  any  measure  affect  or 
impair  any  proceeding  had  and  done  under  the  acts  to  which 
this  is  an  amendment,  or  any  rights  or  privileges  acquu'ed 
under  said  acts."  * 

A  revenue  act  provided  that  lands  sold  for  the  non-paj^nent 
of  taxes  could  be  redeemed  within  a  certain  time  upon  the 
payment  of  a  fixed  penalty.  The  act  was  repealed  by  a  sub- 
sequent one,  changing  the  time  of  redemption  and  the  amount 
of  the  penalty,  but  providing  that  the  former  act  should  re- 
main in  force  for  the  collection  of  taxes  levied  thereunder.  It 
w^s  held  that  an  act  in  force  for  the  purpose  of  collection  was 
in  force  for  the  purpose  of  redemption.^  The  lien  of  a  judg- 
ment in  respect  to  duration  was  held  saved  by  the  words  "  no 
rights  vested  or  liabilities  incurred  at  that  time  shall  be  lost  or 
discharged."  The  judgment  lien  is  incident  to  a  judgment,  a 
liability  incurred,  and  therefore  saved  from  the  effect  of  the 

other  section  a  saving  to  all  persons,  the  intention  of  the  legislature  to  pre- 

of  "  aU  actions  and  causes  of  action  serve  not  only  actions  which,  tech- 

Avhich  shall  have  accrued  in  virtue  of  nically  and  properly    speaking,  ac- 

or  founded  on  any  of  said  repealed  crued  or  had  been  founded  on  the 

acts,  in  the  same  manner  as  if  such  statute,  but  those  also  which  were 

acts  had  never  been  repealed."  It  was  preserved  and  secured  to  a  party  by 

contended  that  that  action  did  not  ac-  the  repealed  act"    Treat  v.  Sti-ick- 

crue  in  virtue  of  the  repealed  act,  nor  land,  23  Me.  234. 

was  founded  on  it.    Shepley,  J.,  said :  i  Cochran  v.  Taylor,  13   Ohio   St. 

"  When  the  language  is  considered  in  382. 

connection  with  [the    other  saving  2  Belfast  v.  Fogler,  71  Me.  403. 

clause]  and  with  the  recollection  that  3  "Webster  v.  County  Commission- 

tlie  general  pui-pose  of  the  revision  ers,  G3  Me.  27 ;    Downs  v.  Town  of 

was  to  embody  in  a  more  systematic  Himtington,  35  Conn.  588. 

form  the  existing  laws,  with  certain  *  Beatty,  Auditor,  v.  People,  6  Colo. 

modifications    and    new    provisions,  538. 

without  destroying  existing   rights,  =  WoKe  v.  Henderson,  28  Ark.  304. 

there  can  be  httle  doubt  that  it  was 


REPEALING    ACT8.  227 

repealing  statute.^  A  saving  of  pending  prosecutions  does 
not  include  a  case  where  the  prosecution  has  closed  and  sen- 
tence has  been  pronounced ;  ^  nor  cases  commenced  afterwards.^ 
Under  a  saving  of  pending  prosecutions  and  offenses  thereto- 
fore committed,  an  indictment  filed  after  the  repeal  took  effect 
was  sustained.'*  Such  a  provision  in  a  repealing  act  relates 
solely  to  the  acts  repealed  by  it,'  unless  a  different  intention 
is  deducible  from  the  language  of  the  saving  clause.  A  pro- 
vision in  the  repealing  law  to  the  effect  "  that  no  remedy  to 
which  a  creditor  is  entitled  under  the  provisions  of  the  laws 
heretofore  in  force  shall  be  impaired  by  this  act "  does  not 
apply  to  creditors  suing  for  breaches  of  the  bond  occurring 
since  the  enactment  of  the  repealing  statute.^  The  effect  of 
the  repeal  of  a  statute  and  its  re-enactment  in  the  same  words 
by  a  statute  which  takes  effect  at  the  same  time  with  the  re- 
pealing act  is  to  continue  such  statute  in  uninterrupted  opera- 
tion,^   The  rule  is  the  same  as  to  criminal  offenses.^ 

§  168.  Revival  l>y  repeal  of  repealing  statute. —  The  com- 
mon-law rule  is  well  settled  that  the  simple  repeal,  suspension 
or  expiration  of  a  repeahng  statute  revives  the  repealed  statute, 
whether   such  repeal  was   express  or  only  by  implication.* 

1  Dearborn  v.  Patton,  3  Oregon,  Barb.  456 ;  Wheeler  v.  Roberts,  7  Cow. 
420.  536 ;  Van  Denbui'gh  v.  President,  etc. 

2  Aaron  v.  State,  40  Ala.  307.  See  66  N.  Y.  1 ;  Van  Valkenburgh  v.  Tor- 
Luke  T.  Calhoun  Co.  56  Ala,  415.  rey,  7  Cow.  252 ;  People  v.  Tmstees, 

3  Knox  V.  Baldwin,  80  N.  Y.  610.  26  Hun,  488 ;  Conunonwealth  t.  Chur- 

4  Sanders  v.  State,  77  Ind.  227.  chill,  2  Met  118;  Hastings  v.  Aiken, 

5  Mongeon  v.  People,  55  N.  Y.  613.  1  Gray,  163 ;  McMillan  v.  Bellows,  37 

6  Collins  V.  WaiTen,  63  Tex.  311.  Hun,  214 ;   Doe  v.  Naylor,  2  Blackf. 
■^  Laude  v.  Chicago,  etc.  R.  R  Co.  33    32 ;   Harris  v.   Supervisors,  33  Hun,^ 

Wis,  640 ;  Middleton  v.  N.  J.  etc.  R  R.  279 ;     Zimmerman     v,    Perkiomen, 

Co.    26   N.    J.  Eq.  269 ;  DashieU  v.  etc.  Co.  81*  Pa.  St  96.    It  has  been 

Mayor,  etc.  45  Md.  615 ;   Capron  v.  held  that  a  statute  repealed  by  two 

Sti'out,  11  Nev,  304 ;  United  Hebrew  acts  is  not  revived  by  repeal  of  one  of 

B.  Asso.  V.  Bensliimol,  130  Mass.  325 ;  them.     Dyer    v.    State,   Meigs,   237  ; 

Knoup  V.  Bank,  1  Ohio  St  603 ;   Cof-  Teter  v.  Clayton,  71   Ind.  237 ;  Poor 

fin  V,  Rich,  45  Me,   507 ;    Smith  v.  Directors  v.    R.   R   Co.   7  Watts  & 

Estes,  46  Me.  158.  S.  236;    Zimmerman  v.  Perkiomen, 

8  State  V.  Gumber,  37  Wis.  298;  81*  Pa,  St  96;  Longlois  v,  Longlois, 
State  V,  Wish,  15  Neb.  448 ;  ante,  48  Ind.  60 ;  Waugh  v.  Riley,  68  id. 
§  134 ;  McMullen  v.  Guest  6  Tex.  278 ;  482 ;  Niblack,  Athn'r,  v.  Goodman,  G7 
Ilirschburg  v.  People,  6  Colo.  145.  id.  174 ;  Brinkley  v.  Swicegood,  65  N. 

9  Gale  V.  Mead,  4  HiE,  109 ;  Brown  v.  C.  626 ;  Ilan-ison  v.  Walker,  1  Ga.  32 ; 
Barry,  3  DalL  365 ;  People  v.Davis,  61  People  v.  Wintermute,   1   Dak.    63 ; 


22S  KEPEAIJNG   ACTS. 

But  it  is  otherwise,  it  seems,  where  the  constitution  provides 
that  no  law  shall  be  revived  unless  the  new  act  contains  the 
law  revived.^  To  repeal  a  statute  will  revive  the  common  law.^ 
When  a  statute  restraining  a  man's  natural  rights,  or  his  use 
of  his  property,  is  repealed,  he  is  restored  to  those  rights,  as 
before  the  law  was  passed.^  This  rule  of  revival  was  held 
to  apply  to  the  vote  of  a  tax  by  taxable  inhabitants.  This  vote 
was  restored  to  effect  by  repealing  a  rescinding  vote.^  Where 
a  statute  professes  to  repeal  absolutely  a  prior  law  and  substi- 
tutes other  provisions  on  the  same  subject  which  are  lunited  to 
continue  only  till  a  certain  time,  the  prior  law  does  not  revive 
after  the  repeahng  statute  is  spent,  unless  the  intention  of  the 
legislature  to  that  effect  is  expressed.^  The  legislature  may 
make  the  revival  of  an  act  depend  upon  a  future  event  to  be 
made  known  by  executive  proclamation.^  Where  an  act  is  re- 
vived by  a  subsequent  law  the  legislature  must  be  understood 
to  give  it,  from  the  time  of  its  revival,  precisely  that  force 
and  effect  which  it  had  at  the  moment  Avhen  it  expired.'  In- 
complete proceedings  which  were  arrested  and  rendered  void 
by  repeal  of  the  statute  under  which  they  were  instituted 
will  not  be  restored  to  life  by  a  revival  thereof.^  A  forfeit- 
ure for  a  prohibited  act  was  given  by  statute  to  any  one 
who  should  sue  for  it.  Afterwards  the  exclusive  right  to  sue 
for  it  was  given  to  overseers  of  the  poor.  The  repeal  of  this 
act  was  held  to  operate  only  prospectively  and  gave  no  right 
to  any  other  than  the  overseers  for  forfeitures  incm'red  during 
the  operation  of  the  second  act.^ 

Where  the  repeal  of  a  repeahng  statute  is  for  the  purpose 

Janes  v.  Buzzard,  Hempst.  259;  Wit-  3  James  v.  Dubois,  16  N.  J.  L.  285. 

kouski  V.  Witkouski,  16  La.  Ann.  232 ;  *  Gale  v.  Mead,  4  HiU,  109. 

TaUamon  v.    Cardenas,   14  id.    509 ;  5  Warren  v.  Windle,  3  East,  205. 

Weakley    v.   Pearce,    5  Heisk.   401 ;  ^  Cargo  of  Brig  Am-ora  v.  United 

Hightower  v.  Wells,  6  Yerg.  249.   See  States,  7  Cr.  382. 

Soutliwark  Bank  v.  Commonwealtli,  '^  Id.    See  Sliipman  v.  Henbest,  4  T. 

26  Pa.  St.  446.  R.  109 ;  Winter  v.  Dickerson,  42  Ala. 

1  Renter  v.  Bauer,  3  Kan.  505.  92. 

'^  Matliewson     v.      Phoenix     Iron  » Commonwealtli  v.  Leech,  24  Pa. 

Foundry,  20  Fed.  Rep.  281 ;   State  v.  St.  55. 

Rollins,  8  N,  H.  550 ;  Gray  v.  Obear,  9  Van  Valkenburgh  v.    Torrey,   7 

54  Ga.  231 ;  Lowenberg  v.  People,  27  Cow.  252. 
N.  Y.  336.  See  Boismare  v.  His  Cred- 
itors, 8  La.  315. 


REPEALING    ACTS.  229' 

of  substituting  other  provisions  in  its  place,  the  implication 
of  an  intention  to  revive  the  repealed  statute  cannot  arise, 
and  especially  if  the  substituted  provision  is  repugnant  to  the 
original  provision,  or  is  not  properly  cumulative  to  it.^  So  the 
repeal  of  a  statute  which  was  a  revision  of  and  a  substitute 
for  a  former  act  to  the  same  effect  which  was  therefore  re- 
pealed cannot  be  deemed  to  revive  the  previous  act ;  for  this 
would  be  plainly  contrary  to  the  intention  of  the  legisluture.- 
And  where  a  statutory  provision  has  been  repealed  without 
change  in  the  amendatory  act  and  the  latter  is  afterwards  re- 
pealed, the  original  provision  is  repealed  also.*  Statutes  have 
been  very  generally  adopted  in  the  states  abolishing  the  rule 
of  implied  revival  as  a  consequence  of  the  repeal  of  the  re- 
pealing statute.^ 

In  State  v.  Slaughter  ^  the  court  construed  the  effect  of  a 
general  provision  that  "  where  any  law  repealing  any  former 
law,  clause  or  provision  shall  itself  be  repealed,  it  shall  not  be 
considered  to  revive  such  former  law,  clause  or  provision, 
unless  it  be  expressly  otherwise  provided."  It  was  held  that 
if  the  section  of  the  marriage  act  under  consideration  re- 
pealed or  superseded  the  common  law  on  the  subject  of  in- 
cestuous marriages,  its  repeal  would  not  revive  the  common 
law.  Where  revival  requires  re-enactment,  a  legislative  decla- 
ration that  an  act  mentioned  shall  not  repeal  the  provision  wiU 
not  suffice.^  Where  a  general  act  applicable  to  all  the  counties 
of  the  state  is  repealed  as  to  a  particular  county,  and  a  still 
later  act  amends  a  section  so  partially  repealed,  the  amend- 
ment will  not  be  deemed  to  affect  the  excluded  county.^ 

1  Common-wealth    v.    Churchill,  2    pie  v.  Supervisors,  67  N.  Y.  109 ;  Har- 
Met  118 ;  Bouton  v.  Eoyce,  10  Phila,    ris  v.  Supervisors,  83  Hun,  279. 

559;    Wai-ren    v.    WincUe,    3    East,        ^See  Milne   v.  Huber,  8  McLean, 

205.  212. 

2  Butler  V.  Russel,  3  CUff.  251.  5  70  Mo.  484 

3  Moody  v.   Seaman,  46  Mch.  74 ;        6  state  v.  Conkling,  19  Cal  501. 
Goodno  V.  Oshkosh,  31  Wis.  127 ;  Peo-        '  People  v.  Tyler,  36  Cal.  522. 


CHAPTER  IX. 


STATUTES  VOID  IN  PAET. 


^  169.  Statutes  may  be  void  in  part 
and  valid  in  part. 

171.  Requisite  separableness  of  void 
part. 

174  Main  purpose  being  unconsti- 
tutional, whole  act  void. 


§  176.  Where  void  part  inducement 
to  residue. 
178.  VaUd  part  must  be  complete 
and  accord  with  legislative 
intent 


§  169.  Statutes  may  Ibe  Toid  in  part  and  good  in  part. — 

In  this  country  legislative  bodies  have  not  an  unlimited  power 
of  legislation.  Constitutions  exist  which  contain  the  supreme 
law.  Statutes  which  contravene  their  provisions  are  void. 
Courts  have  power,  and  they  are  charged  with  the  judicial 
duty,  to  support  the  constitutions  under  which  they  act  against 
legislative  encroachments.  They  will  declare  void  acts  which 
conflict  with  paramount  laws.^  "Where  a  part  only  of  a  stat- 
ute is  unconstitutional,  and  therefore  void,  the  remainder  may 
still  have  effect  under  certain  conditions.  The  court  is  not 
warranted  in  declaring  the  whole  statute  void  unless  all  the 
provisions  are  connected  in  subject-matter,  depend  on  each 
other,  were  designed  to  operate  for  the  same  purpose,  or  are 
otherwise  so  dependent  in  meaning  that  it  cannot  be  presumed 
that  the  legislature  would  have  passed  one  without  the  other. 
The  constitutional  and  unconstitutional  provisions  may  even 
be  expressed  in  the  same  section,  and  yet  be  perfectly  distinct 
and  separable,  so  that  the  first  may  stand  though  the  last  fall. 
The  point  or  test  is  not  whether  they  are  contained  in  the 
same  section,  for  the  distribution  into  sections  is  purely  arti- 
ficial, but  whether  they  are  essentially  and  inseparably  con- 
nected in  substance.^ 

1  Scudder    v.    Trenton    Delaware  Piscataqua  Bridge  v.  N.  H.  Bridge,  7 

Falls  Co.  1  N.  J.  Eq.  694 ;  State  v.  N.  H.  35 ;  Pierce  v.  Kimball,  9  Me.  59 ; 

Parkhurst,  9  N.  J.  L.  427 ;  Bank  of  Goshen  v.  Stonington,  4  Conn-  225 ; 

Hamilton  v.  Dudley's  Lessee,  2  Pet.  Hill  v.  Sunderland,  3  Vt.  507 ;  Holden 

492 ;  Ogden  v.  Saimders,  12  Wheat,  v.  James,  11  Mass.  396. 

213 ;  Emerick  v.  Harris,  1  Bin.  416 ;  2  Commonwealth    v.  Hatchings,  5 


STATUTES   VOID    IN    PART. 


231 


If  one  provision  of  an  enactment  is  invalid  and  the  others 
valid,  the  latter  are  not  affected  by  the  void  provision,  unless 
they  are  plainly  dependent  upon  each  other,  and  so  insepa- 
rably connected  that  they  cannot  be  divided  without  defeating 
the  object  of  the  statute.^  And  the  converse  is  true.  The 
vicious  part  must  be  distinct  and  separable,  and,  when  stricken 
out,  enough  must  remain  to  be  a  complete  act,  capable  of  being 
carried  into  effect,  and  sufficient  to  accomplish  the  object  of 
the  law  as  passed,  in  accordance  with  the  intention  of  the  leg- 
islature. It  should  be  confined  to  the  same  limits  and  still 
subject  to  the  intended  qualifications.- 


Gray,  482;  Mobile,  etc.  E.  R  Co.  v. 
State,  29  Ala.  573;   South  &  North 
Ala.  R.  R.  Co.  V.  Morris,  65  Ala.  193 ; 
State  V.  Brown,  19  Fla.  563 ;  Morrison 
V.  State,  40  Ark.  448 ;  State  v.  WUson, 
12    Lea,  246;    TiUmau   v.   Cocke,  9 
Baxt.  429 ;  Johnson  v.  Winslow,  63 
N.  C.  552 ;  Harlan  v.  Sigler,  Morris, 
39 ;  State  v.  Marsh,  37  Ark.  356 ;  State 
V.  Kautler,  33  Minn.  69 ;  S.  C.  6  Am. 
&  Eng.    Corp.  Cas.   169;    American 
Print    AVorks    v.   Lawi-ence,  23    N. 
J.  L.  590 ;  Lea  v.  Bumm,  83  Pa.  St 
237;  Bittle    v.  Stuart,  34  Ark.  224; 
National  Bank  v.  Barber,  24  Kan.  534 ; 
Darragh  v.  McKim,  2  Hun,  337 ;  Berry 
V.  R.  R.  Co.  41  Md.  446;  Fleisclmer 
V.  Chadwick,  5  Oregon,  152 ;  Village 
of  Deposit  V.  Vail,  5  Hun,  310 ;  State 
V.  Clarke,  54  Mo.  17 ;  Tm-ner  v.  Board 
of  Commissioners,  27  Kan.  314 ;  State 
T.  Wheeler,  25  Conn.  290 ;  People  ex 
rel.  V.  Kenney,  96  N.  Y.  294 ;  Dmyeo 
V.  Mayor,  etc.  id.  477 ;  IMatter  of  Met 
Gas  Light  Co.  85  id.  527 ;  Matter  of 
Sackett  etc.  Sti-eets,  74  id.  95 ;  Mat- 
ter of  Ryers,  72  id.  1 ;  Tiernan  v.  Rin- 
ker,  102  U.  S.  123 ;  PoweU  v.  State, 
69  Ala.  10 ;  State  ex  reL  v.  Tuttle,  53 
Wis.  45;   State  v.  Newton,  59  Ind. 
173 ;  Ti-ipp  V.  Overocker,  7  Colo.  72 ; 
Gunnison  Co.  Com.  v.  Owen,  id.  467 ; 
People  V.  Jobs,  id.  475;   People  v. 
Hall,  8  id.  485 ;  Cole  v.  Commission- 
ers, 78  Me.   532 ;  Re  Groff,  21  Neb. 


647;  Frazer,  Ex  parte,  54  CaL  94. 
Li  Curtis  v.  Leavitt  15  N.  Y.  96, 
Comstock,  J.,  said:  "A  docti'ine 
which  is  expressed  in  the  words 
'  void  in  part,  void  in  toto,^  has  often 
found  its  way  into  books  and  judi- 
cial opinions  as  descriptive  of  the 
effect  which  a  statute  may  have 
upon  deeds  and  other  insti'uments 
which  have  in  them  some  forbidden 
vice.  There  is,  however,  no  such 
general  principle  of  law  as  the 
maxim  would  seem  to  indicate.  On 
the  conti'ary,  the  general  ride  is  that 
if  the  good  be  mixed  with  the  bad  it 
shall  nevertheless  stand,  ijrovided  a 
separation  can  be  made.  The  excep- 
tions are,  first,  where  a  statute  by 
its  express  terms  declares  tlie  whole 
deed  or  contract  void  on  account  of 
some  provision  wliich  is  imlawfvd; 
and  second,  where  there  is  some  all- 
pervading  vice,  such  as  fraud,  for  ex- 
ample, wliich  is  condemned  by  the 
common  law,  and  avoids  all  parts  of 
tlie  ti'ansaction  because  all  ai-e  alike 
infectecL" 

1  Dmyee  v.  Mayor,  etc.  96  N.  Y.  477 ; 
Re  Groff,  21  Neb.  647. 

2Meshmeier  v.  State,  11  Lid.  485; 
Burkholtz  v.  State,  16  Lea,  71 :  Bittle 
V.  Stuart  34  Ai-k.  224;  Allen  v. 
Louisiana,  103  U.  S.  80;  People  v. 
Porter,  90  N.  Y.  68. 


232  STATUTES    VOID    IN    PAKT. 

§  170.  It  may  be  laid  down  generally  as  a  sound  proposition 
that  one  part  of  a  statute  cannot  be  declared  void  and  leave 
any  other  part  in  force,  unless  the  statute  is  so  composite,  con- 
sisting of  such  separable  parts,  that,  when  the  void  part  is 
eliminated,  another  living,  tangible  part  remains,  capable  by 
its  own  terms  of  being  carried  into  effect,  consistently  with 
the  intent  of  the  legislature  which  enacted  it  in  connection 
with  the  void  part.     If  it  is  obvious  that  the  legislature  did 
not  intend  that  any  part  should  have  effect  unless  the  whole, 
including  the  part  held  void,  should  operate,  then  holding  a 
part  void  invalidates  the  entire  statute.    If  a  statute  attempts 
to  accomplish  two  or  more  objects,  or  to  deal  with  two  or  more 
independent  subjects,  and  the  provisions  as  to  one  are  void,  it 
may  stiU  be  in  every  respect  complete  and  vaUd  as  to  any 
other.^    Illustrations  of  this  proposition  are  furnished  by  nu- 
merous cases  where  acts  are  violative  of  the  constitutional  in- 
junction that  an  act  shall  relate  to  but  one  subject,  which  shaU. 
be  stated  in  the  title.    If  the  act  embraces  more  than  one  sub- 
ject, and  one  is  stated  in  the  title,  it  is  valid  as  to  that  subject  if 
complete  in  itself,  but  void  as  to  any  other.    The  ehmination  of 
the  latter  leaves  a  constitutional  act,  where  there  is  no  inter- 
dependence between  the  subjects.^    If  the  matter  of  the  act 
foreign  to  the  subject  stated  in  the  title  is  divisible  from  that 
which  is  clearly  within  the  title,  and  the  latter  can  stand  and 
have  effect  without  the  former,  then  only  so  much  of  the  act 
as  is  not  embraced  in  the  title  is  void.' 

1  People  V.  Cooper,  83  IlL  585;  State  v.  Exnicios,  33  id.  253;  State 
Towles,  Ex  pai-te,  48  Tex.  413 ;  State  v.  Crowley,  33  La.  Ann.  782 ;  State 
T.  Clinton,  28  La,  Ann.  201 ;  Wells,  v.  Dalon,  35  La.  Ann.  1141 ;  Dorsey's 
Ex  parte,  21  Fla.  280 ;  Hinze  v.  Peo-  Appeal,  72  Pa.  St.  192 ;  Thomason,  Ex 
pie,  92  lU.  406 ;  Lombard  v.  Antioch  parte,  16  Neb.  238 ;  Davis  v.  State,  7 
College,    60  Wis.   459 ;    Sparrow    v.  Md.  151. 

Commissioner   of    Land    Office,    56  3  Unity  v.  Burrage,  103  U.  S.  447 ; 

Mich.  567 ;  People  v.  Luby,  id.  551.  Moore,  Ex  parte,  62  Ala.  471 ;  Walker 

2  People  V.  Hall,  8  Colo.  485 ;  State  v.  State,  49  id.  329 ;  Lowndes  County 
V.  Hm-ds,  19  Neb.  317 ;  Wliited  v.  v.  Hunter,  49  id.  507 ;  Shields  v.  Ben- 
Lewis,  25  La.  Ann.  568 ;  Gibson  v.  nett,  8  W.  Va.  74 ;  Matter  of  Sackett 
Belcher,  1  Bush,  145 ;  Jones  v.  Thomp-  St.  74  N.  Y.  95 ;  Mewherter  v.  Price, 
son,  12  id.  394;  Fuqua  v.  Mullen,  13  11  Lid.  199;  Bucky  v.  Willard,  16 
Bush,  467 ;  Harris  v.  Supervisors,  33  Fla.  330 ;  State  v.  Wilson,  7  Ind.  516 ; 
Hun,  279 ;  Mississippi,  etc.  Co.  v.  Packet  Co.  v.  Keokuk,  95  U.  S.  80 ; 
Prince,  34  ]\Iinn.  79 ;  Mimicipality  IMatter  of  De  Vaucene,  31  How.  Pr. 
No.  3  V.  IMichoud,  6  La.  Ann.  605 ;  341 ;  Harris  v.  Supervisors,  33  Him, 


STATUTES   VOID    IN   PABT.  233^ 

A  corporate  charter  is  not  entirely  vitiated  because  it  pro- 
vides unconstitutionally  for  the  exercise  of  the  power  of  emi- 
nent domain  for  certain  purposes,^  or  unconstitutionally  re- 
stricts the  rio-ht  to  vote  for  officers.-  Parts  relatinfj  to  mere 
detail  incident  to  the  main  purpose  of  an  act  may  be  stricken, 
out  without  prejudice  to  the  remainder  of  it,  Avhich  contains 
valid  provisions  amply  sufficient  to  enable  the  corporation  to 
fully  perform  all  its  functions,  unless  vital  to  the  main  pur- 
pose as  means  or  as  compensation.'  Where  a  new  offense  is 
created  and  procedure  for  punishment  provided,  if  the  latter 
is  invalid,  and  there  are  general  laws  under  which  prosecutions- 
for  such  an  offense  could  be  conducted,  the  invalidity  of  the 
part  relating  to  the  procedure  will  not  affect  the  part  creating 
the  offense.*  An  act  redistricting  a  county  for  supervisors  was 
held  valid,  though  it  unconstitutionally  provided  that  incum- 
bents should  hold  over  beyond  their  election  terms  until  they 
could  be  immediately  succeeded  by  supervisors  elected  under 
the  act.^  The  powers  of  a  judicial  officer  are  so  separable  and 
independent  that  a  grant  of  them  may  be  void  as  to  one  part 
or  subject  and  good  as  to  others.**  An  act  providing  for  im- 
pounding cattle  taken  damage  feasant^  and  for  detention  of 
them  until  costs  and  damages  are  paid,  may  be  sustained^ 
though  it  include  a  void  provision  for  a  summary  sale  of  such 

279 ;  Rader  v.  Township  of  Union,  39  ^  State  ex  rel.  v.  Tuttle,  53  Wis.  45  \ 

N.  J.  L.  509 ;  ColweU  v.  CliainberUn,  People  ex  reL  v.  Kenney,  96  N.  Y. 

43  id.  387 ;  Matter  of  Van  Antwerp,  294. 

56  N.  Y.  261 ;  People  ex  rel.  v.  Briggs,  3  id. ;  piiiUips  t.  Mayor,  etc.  1  Hilt. 

50  id.  553 ;  Fleischner  v.  Chadwick,  5  483 ;  State  v.  Elizabeth,  40  IS!".  J.  L. 

Oreg.  153;  Matter  of  Paul,  94  N.  Y.  278;  Wakeley  v.  Mohr,  15  Wis.  609; 

497 ;  Dewhm-st  v.  City  of  Allegheny,  State  v.  Eosenstock,  11  Nev.  128 ;  Rob- 

95  Pa,  St.  437 ;  Allegheny  Co.  Home's  inson  v.  Bidwell,  22  Cal.  379 ;  Board  of 

Case,  77  Pa.  St  77 ;    Lea  v.  Bunim,  Com.  v.  Silvers,  22  Ind.  491 ;  Turner  v, 

83  Pa  St  237 ;  To\%-n  of  FishkiU  v.  Board  of  Commissioners,  27  Kan.  314 ; 

Fislikill,  etc.  PIk.  R  Co.  22  Barb.  634 ;  Matter,  etc.  of  ViUage  of  HHdcUeton, 

State  V.  Clarke,  54  Mo.  17 ;  Savannah,  82  N.  Y.  196 ;  Gordon  v.  Cornes,  47 

etc.  R'y  Co.  v.  Geiger,  21   Fla.  669 ;  id.  617.    See  i^ost,  §  171. 

Callaghan  v.  Cliipman,  59  Mich.  610 ;  ^  State  v.  Ne^svton,  59  Ind.  173. 

State  V.  Perstnger,  76  ]Mo.  346 ;  Stiefel  -^  Christy  v.  Board  of  Supervisors, 

V.  Maiyland  Institute,  61  Md.   144 ;  39  CaL  3. 

AVyukoop  V.  Cooch,  89  Pa,  St  450.  o  Mayor,  etc.  v.  Dechert  32  Md.  369 ; 

1  Morgan  v,  Monmouth  Plank  R.  Reid  v.  Morton,  119  HI  lia 
Co.  26  N.  J.  L.  99 ;  Matter  of  Village 
of  mddleton,  82  N.  Y.  196. 


234  STATUTES   VOID    IN   PART. 

cattle.^  A  statute  which  prohibits  traffic  in  intoxicating  liq- 
uors, provides  penalties  therefor,  and  also  forfeiture  of  hquors 
kept  for  sale,  and  the  vessels  in  which  the  same  are  kept,  is  not 
an  entirety.  The  forfeiture  clause  may  be  held  unconstitu- 
tional, and  the  remainder  nevertheless  be  sustained.^ 

§  171.  The  requisite  separableuess  of  tlie  void  part. —  To 
prevent  the  void  part  of  a  statute  from  vitiating  other  portions 
it  must  be  possible  to  separate  them.  This  separation  would 
generally  be  easy  where  there  is  inserted  in  an  act  otherwise 
constitutional  a  distinct  provision  which  can  have  no  operation 
or  effect,  according  to  its  terms,  but  such  as  is  in  violation  of 
the  constitution.  Such  a  provision  Would  be  absolutely  void, 
and  it  is  difficult  to  conceive  how  it  could  be  so  blended  with 
other  and  constitutional  provisions  as  not  to  be  capable  of  Ht- 
eral  separation  and  exclusion ;  it  may,  however,  be  so  related 
to  other  provisions  as  to  infect  them  by  dependence,  but  the 
actual  separation  of  the  vicious  part  would  be  practicable. 
Such  separation  is  practically  difficult  when  a  provision  is 
general,  and  a  part  of  its  applications  or  effects  would  be  vio- 
lative of  the  constitution  and  a  part  not  so,  and  both  equally 
within  the  terms,  scope  and  apparent  intent  of  the  law- 
makers.^ Such  provisions  may  be  held  valid  so  far  as  they 
can  operate  in  harmony  with  the  constitution,  and  by  con- 
struction limited  to  such  an  effect.  They  will  be  held  void  for 
any  purpose  beyond  that  limit.  Statutes  of  a  civil  nature  are 
severable  when  all  then*  terms  may  have  effect  to  some  extent ; 
and  upon  a  defined  principle  may  be  so  limited  and  all  effect 
beyond  constitutional  barriers  prevented.  The  legislature  of 
Iowa  gave  a  city  power  to  establish  and  create  wharves  and 
fix  the  rates  of  landing  and  wharfage  of  all  boats,  etc.,  moored 
at  or  landing  at  the  wharves.  Under  this  power  the  city 
council  passed  an  ordinance  ordaining  that  all  the  grounds  then 
lying,  or  which  might  thereafter  be  made,  between  Water 
street  in  the  city  and  the  middle  channel  of  the  Mississippi 
river,  should  be  declared  a  wharf.  The  ordinance  provid-ed  for 
a  wharfage  fee  for  use  of  any  part  of  said  wharf  or  "Water 

1  Rood  V.  McCargar,  49  CaL  117 ;  3  Western  Union  TeL  Co.  v.  State, 
Wilcox  V.  Hemming,  58  Wis.  144, 159.     63  Tex.  630. 

2  State  V.  Wheeler,  25  Conn.  290; 
Fisher  v.  M.Girr,  1  Gray,  1. 


STATLTiiJ    VuiiJ    i.-J    J'AJ:r.  235 

street.  Part  of  it  was  actual  wharf  made  at  considerable  ex- 
pense and  a  part  was  the  unimproved  bank.  As  to  the  latter 
the  ordinance  requiring  wharfage  was  supposed  to  be  void. 
Though  that  part  was  not  distinguishable  in  the  text  of  the 
ordinance,  it  was  held  severable ;  that  it  was  valid  so  far  as  to 
authorize  its  enforcement  for  collecting  wharfage  for  use  of  the 
actual  wharves,  a  right  and  power  then  alone  in  question.' 

In  Railroad  Companies  v.  Schutte  ^  the  court  said  the  strik- 
ing out  of  the  void  part  is  not  necessarily  "  by  erasing  words, 
but  it  may  be  by  disregarding  the  unconstitutional  provision, 
and  reading  the  statute  as  though  that  provision  was  not 
there."  It  is  a  general  rule  of  construction  to  give  such  effect, 
if  possible,  to  a  statute  that  it  shall  work  no  breach  of  public 
faith,  nor  violate  the  constitution.^ 

§  172.  But  the  rule  is  more  stringent  in  regard  to  criminal 
statutes.  As  said  by  Johnson,  J.,  in  Wynehamer  v.  People :  * 
"  Laws  in  relation  to  civil  rights  are  sometimes  held  to  be  un- 
constitutional, in  so  far  as  they  affect  the  rights  of  certain 
persons,  and  valid  in  respect  to  others.  This  is  done  mainly 
upon  the  ground  that  the  courts  will  not  construe  them  to  re- 
late to  such  cases  as  the  legislature  had  not  power  to  act  upon. 
To  statutes  creating  criminal  offenses,  such  a  rule  of  construc- 
tion ought  not  to  be  applied,  and  I  cannot  find  an}^  trace  of 
its  ever  having  been  applied.  It  is  of  the  highest  importance 
to  the  administration  of  criminal  justice  that  acts  creating 
crimes' should  be  certain  in  their  terms  and  plain  in  their  ap- 
phcation ;  and  it  would  be  in  no  small  degree  unseemly  that 

1  Packet  Co.  v.  Keokuk,  95  U.  S.  80 ;  part  of  the  act  which  related  to  ti"ans- 

Freight  Tax  Case..  15  Wall.  233.     A  portation  wholly  within  the  state  was 

statute     of    Pennsylvania    requii'ed  valid,  but  it  is  to  be  inferred  that  the 

every    railroad,     steamboat,    canal,  coiurt  did  not  deem  the  act  wholly 

slackwater  navigation  company,  and  void.      Supervisors  v.    Stanley,    105 

all  other  companies  doing  business  U.  S.  305,  313,  314;  Austin  v.  The  Al- 

within  that  state,  and  upon  whose  dermen,  7  Wall.  694 ;  Bull  v.  Rowe,  13 

■works  freight  might  be  ti'ansported,  S.  C.  355 ;    McCready  v.  Sexton,  29 

whether  by  the  company  or  by  in-  Iowa,    356 ;   Hiss    v.  Baltimore,  etc. 

dividuals,  to  pay  certain  taxes.     This  R.   R   Co.   53  Md.  243 ;  FranklLa  v. 

act  appUed  to  domestic  as  well  as  in-  Westfall,  27  Kan.  614. 

terstate  transportation,  and  as  to  the  -'  103  U.  S.  118,  143. 

latter  it  was  void,  though  that  part  ^  United  States  v.  Central  Pac.  R. 

was  not  distinguishable  in  the  terms.  R.  Co.  118  U.  S.  235, 

It  was  not  dh-ectly  declared  that  the  *  13  N.  Y.  378,  42" 


236  STATUTES    VOID    IN    FART, 

courts  should  be  called  upon,  in  administering  the  criminal 
law,  to  adjudge  an  act  creating  offenses  at  one  time  valid,  and 
at  another  time  void.  It  must,  I  think,  stand  as  it  has  been 
enacted,  or  not  stand  at  all."  A  law  void  as  to  certain  prop- 
erty (intoxicating  Hquors)  already  possessed  at  the  passage  of 
the  law,  but  which  would  be  vaUd  if  confined  to  such  property 
subsequently  acquired,  is  wholly  void,  being  general  so  as  to 
include  both  in  penal  destruction  of  value.^  Where  the  con- 
stitution fixed  the  limit  of  punishment  by  fine  imposed  by  a 
justice  of  the  peace  at  $3,  and  the  legislature  provided  for  a 
fine  not  exceeding  $20  in  such  cases,  the  statute  was  held  vahd 
to  the  constitutional  limit  of  $3,  and  void  beyond  that  sum.^ 
The  excess  was  easily  ascertained,  and  divisible  from  the 
amount  authorized.  And  though  the  void  part  could  not  be 
literally  stricken  out  without  changing  the  letter  of  the  stat- 
ute, it  could  be  excluded  with  no  less  certainty  and  precision. 
§  173.  In  United  States  v.  Eeese,*  it  was  held  that  the  power 
of  congress  to  legislate  at  all  upon  the  subject  of  voting  at 
state  elections  rests  upon  the  fifteenth  amendment  to  the  fed- 
eral constitution,  and  can  be  exercised  by  providing  a  punish- 
ment only  when  the  wrongful  refusal  to  receive  the  vote  of  a 
qualified  elector  at  such  election  is  because  of  his  race,  color  or 
previous  condition  of  servitude.  A  congressional  enactment 
not  confined  in  its  operation  to  unlawful  discrimination  on  ac- 
count of  race,  color  or  previous  condition  of  servitude  tran- 
scends the  constitutional  fimit,  and  is  unauthorized.  "Waite,  C.  J., 
said :  "  We  are  therefore  directly  called  upon  to  decide  whether 
a  penal  statute  enacted  by  congress,  with  its  limited  powers, 
which  is  in  general  language  broad  enough  to  cover  wrongful 
acts  without  as  well  as  within  the  constitutional  jurisdiction, 
can  be  limited  by  judicial  construction  so  as  to  make  it  operate 
only  on  that  which  congress  may  rightfully  prohibit  and  pun- 
ish. For  this  purpose  we  must  take  these  sections  of  the  stat- 
ute as  they  are.  "We  are  not  able  to  reject  a  part  which  is 
unconstitutional  and  retain  the  remainder,  because  it  is  not 
possible  to  separate  that  which  is  unconstitutional,  if  there  be 
any  such,  from  that  which  is  not.  The  proposed  effect  is  not 
to  be  attained  by  striking  out  or  disregarding  words  that  are 

1 13  N.  Y.  378,  425.  3  92  U.  S.  214 

2  Clark  V.  EUis,  2  Blackf .  8. 


STATUTES    VOID    IN    PART. 


237 


in  the  section,  but  by  inserting  tliose  that  are  not  now  there. 
Each  of  the  sections  must  stand  as  a  whole  or  fall  altogether. 
The  language  is  plain.  There  is  no  room  for  construction,  un- 
less it  be  as  to  the  effect  of  the  constitution.  The  question, 
then,  to  be  determined  is,  whether  we  can  introduce  words  of 
limitation  into  a  penal  statute  so  as  to  make  it  specific,  when, 
as  expressed,  it  is  general  only.  It  would  certainl}^  be  dan- 
gerous if  the  legislature  could  set  a  net  large  enough  to  catch 
all  possible  offenders,  and  leave  it  to  the  courts  to  step  inside 
and  say  who  could  be  rightfully  detained  and  who  should  be 
set  at  large.  This  would,  to  some  extent,  substitute  the  judi- 
cial for  the  legislative  department  of  the  government.  The 
courts  enforce  the  legislative  will  when  ascertained,  if  within 
the  constitutional  grant  of  power.  ...  To  limit  this  stat- 
ute in  the  manner  now  asked  would  be  to  make  a  new  law, 
not  to  enforce  an  old  one.  That  is  no  part  of  our  duty." 
This  view  has  been  repeatedly  approved  in  subsequent  cases.^ 


1  United  States  v.  Harris,  106  U.  S. 
€29 ;  Trade-mark  Cases,  100  U.  S.  82 ; 
Va.  Coupon  Cases,  114  id.  305.  In 
Baldwin  v.  Franks,  120  U.  S.  678,  the 
plaintiff  had  been  in  custody  on  a 
charge  of  violating  an  act  of  congress 
wliich  provided  for  punislunent  of 
those  who  "  in  any  state  or  territory 
conspu-e,  .  .  .  for  the  purpose  of 
depriving,  either  directly  or  indi- 
rectly, any  person  or  class  of  persons 
of  the  equal  protection  of  the  laws  or 
of  equal  privileges  or  immunities  un- 
der the  laws."  Sec.  5519,  R.  S.  U.  S. 
Waite,  C.  J.,  said :  "  In  United  States 
V.  Harris,  mqira,  it  was  decided  that 
tills  section  was  unconstitutional  as  a 
provision  for  the  pvmishment  of  con- 
sphacies  of  the  character  therein 
mentioned  within  a  state.  It  is  now 
said,  however,  that  in  that  case  the 
consphacy  charged  was  by  persons  in 
a  state  against  a  citizen  of  the  United 
States  and  of  the  state,  to  deprive  him 
of  the  protection  he  was  entitled  to 
imder  the  laws  of  that  state,  no  spe- 
cial rights  or  privileges  arising  imder 


the  constitution,  laws  or  treaties  of 
the  United  States  being  involved; 
and  it  is  argued  that  although  the 
section  be  tnvahd  so  far  as  such  an 
offense  is  concerned,  it  is  good  for  the 
pvmislunent  of  those  who  conspire  to 
deprive  ahens  of  the  right  guarantied 
to  theni  in  a  state  by  the  ti'eaties  of 
the  United  States.  In  support  of  this 
argument  rehance  is  had  on  the  well- 
settled  rule  that  a  statute  may  be  in 
part  constitutional  and  in  part  im- 
constitutional,  and  that  under  some 
chcumstances  the  part  which  is  con- 
stitutional will  be  enforced,  and  only 
that  which  is  unconstitutional  will  be 
rejected.  To  give  effect  to  tlus  rule, 
however,  the  pai-ts  —  that  which  is 
constitutional  and  that  wliich  is  un- 
constitutional—  must  be  capable  of 
separation,  so  that  each  may  be  read 
by  itself.  This  statute,  considered  as 
a  statute  inmishing  conspiracies  in  a 
sfcite,  is  not  of  that  character,  for  in 
that  connection  it  has  no  parts  witliin 
the  meaning  of  the  rule.  "VVhetlier  it 
is  separable  so  that  it  can  be  enforced 


238  STATUTES   VOID   IN    PABT. 

To  be  separable  for  the  purpose  of  sustaining  the  remainder  of 
the  act,  such  remainder  must  be  complete  in  itself  and  suffi- 
cient to  accomplish  the  legislative  intent  without  aid  from  tha 
void  part.^ 

§174.  The  main  purpose  Ibeing  imconstitutioiial  the 
"whole  act  void. —  Where  all  the  provisions  of  an  act  are  con- 
nected as  parts  of  a  single  scheme,  the  incidental  provisions 
must  fall  with  the  failure  of  the  main  purpose.^  That  which 
is  merely  auxiliary  to  the  main  design  must  fall  with  the  prin- 
cipal to  which  it  is  merely  an  incident.^  If  only  one  object  is 
aimed  at,  and  that  is  unconstitutional,  and  all  the  provisions 
are  contributory  to  that  object,  and  were  enacted  solely  for 
that  reason,  the  whole  act  is  void.*  An  act  provided  for  a  new 
police  district,  and  police  justice,  with  exclusive  jurisdiction 
not  only  of  new  offenses  created  by  the  same  act,  but  of  mat- 
ters previously  cognizable  by  other  courts.  As  the  creation  of 
the  new  district  and  court  were  essential  to  accomphsh  the 
purpose  of  the  act,  and  that  part  of  it  being  held  unconstitu- 
tional, the  whole  act  was  void.^  "Where  the  entire  scheme 
must  fail  because  of  a  want  of  power  to  enact  it,  there  can  be 
no  possible  good  in  upholding  an  isolated  provision  which  it 

in  a  territoiy,  though  not  in  a  state,  is  ^  AJlen  v.  Louisiana,  103  U.  S.  80 ; 

quite  another  question,  and  one  we  People  v.  Porter,  90  N.  Y.  68 ;  Hinze 

are  not  now  called  on  to  decide.     It  v.   People,   92   111.   406 ;   Towles,   Ex 

provides  in  general  terms  for  the  pun-  parte,  48  Tex.  413 ;  Bittle  v.  Stuart, 

ishment  of  aU  who  conspne  for  the  34  Ai-k.  224 ;  Black  v.  Trower,  79  Va. 

purpose  of  depriving  any  person,  or  123 ;  State  v.  Duke,  42  Tex.  455. 

any  class  of  persons,  of  the  equal  pro-  2  Jones  v.  Jones,   104  N.  Y.  234 ; 

tection  of  the  laws  or  of  equal  privi-  Black  v.  Ti-ower,  79  Va.  123. 

leges  or  immvmities  under  the  laws.  ^  Virginia  Coupon  Cases,  114  U.  S. 

A  single  provision,  which  makes  up  270,  304. 

the  whole    section,  embraces  those  ^  Darby  v.   "Wilmington,  76  N.  C. 

who  conspire  agaiost  citizens  as  well  133 ;  Eckhart  v.  State,  5  W.  Va  515. 

as  those  who  conspire  against  ahens ;  5  Pebple  v.  Porter,  90  N.  Y.   68  j 

those  who  conspire  to  deprive  one  of  Reed  v.  Omnibus  R.  R.  Co.  33  CaL  212 ; 

his  rights  under  the  laws  of  a  state  Kelley  v.  State,  6  Ohio  St  269 ;  Sum- 

aud  those  who  conspire  to  deprive  ter  Co.  v.  Gainesville  Nat  Bank,  62 

hun  of  his  rights  under  the  constitu-  Ala.  464 ;  State  v.  Chsfmberlin,  37  N.  J. 

tion,  laws  or  treaties  of  the  United  L.  388 ;  Lathrop  v.  ]\Iills,  19  CaL  513 ; 

States.  The  limitation  wliich  is  sought  Dells    v.    Kennedy,    49    Wis.    555; 

must  be  made,  if  at  all,  by  consti-uc-  Slinger  v.  Henneman,  38  id.  504. 
tion,  not  by  separation.     This,  it  has 
often  been  decided,  is  not  enougk" 


STATUTES   VOID    IN    PART.  23& 

was,  perhaps,  competent  for  the  law-giver  to  enact,  but  which 
is  unreasonable  and  unjust  if  left  to  stand  alone. ^ 

§  175.  A  law  is  entire  where  each  part  has  a  general  in- 
fluence over  the  rest,  and  all  are  intended  to  operate  together 
for  one  purpose.  In  such  case  the  invalidity  of  that  purpose 
will  affect  the  whole  act.^  Nevertheless,  if  only  one  incidental 
provision  is  invalid,  that  may  not  render  the  whole  act  void. 
It  is  not  entire  in  that  sense.'  Where  a  repeal  of  prior  laws 
is  inserted  in  an  act  in  order  to  the  unobstructed  operation  of 
such  act,  and  it  is  held  unconstitutional,  the  incidental  pro- 
vision for  the  repeal  of  prior  laws  will  fall  with  it.^  An  act 
was  passed  to  dissolve  municipal  corporations  and  provided 
the  manner  in  which  they  might  re-incorporate.  The  latter 
was  the  object  of  the  enactment,  and  that  being  held  uncon- 
stitutional the  former  was  also  invaUd.'  In  such  cases  the 
object  of  the  legislature  is  frustrated ;  when  the  void  part  is 
ehminated,  there  is  not  a  complete  act  remaming  expressive  of 
the  intent  of  the  legislature  and  sufficient  to  carry  it  into  effect.^ 

§  176.  IVliere  the  void  part  is  inducement  to  or  consider- 
ation of  residue  of  act. —  A  leading  case  on  this  subject  is 
Warren  v.  Mayor,  etc."  In  that  case  was  involved  the  valid- 
ity of  a  statute  for  the  annexation  of  the  city  of  Charles- 
town  to  the  city  of  Boston.  There  were  provisions  intended 
to  secure  to  the  inhabitants  of  Charlestown  certain  constitu- 
tional rights  of  representation  in  the  legislature  until  the  time 
when  they  could  enjoy  them  within  the  city  of  Boston.  Some 
years  must  elapse  before  that  time.  The  provisions  to  secure 
such  rights  during  the  interval  were  held  unconstitutional, 
and  therefore  that  the  whole  act  was  void.  Shaw,  C.  J.,  said : 
"If  [the  parts  of  the  act]  are  so  mutually  connected  with  and 
dependent  on  each  other,  as  conditions,  considerations  or  com- 
pensations for  each  other,  as  to  warrant  a  belief  that  the  legis- 
lature intended  them  as  a  whole,  and  that,  if  all  could  not  be 
carried  into  effect,  the  legislature  would  not  pass  the  residue 

1  Fant  V.  Gibbs,  54  Miss.  396,  411.         State  v.  Commissioners,  38  N.  J.  L. 

2  Second  jMunicipality  v.  Morgan,  320 ;  Childs  v.  Shower,  18  Iowa,  201. 
1  La.  Ann,  111 ;   Powell  v.  State,  09    See  ante,  §§135.  146. 

Ala  10 ;   Towles,  Ex  parte,   48  Tex.  5  state    v.     Stark,     18    Fla.     255 ; 

413 ;  Neely  v.  State,  4  Baxt  174.  Quinlon  v.  Rogers,  12  Jlich.  168. 

'^Ante,  §  179.  ''  Towles,  Ex  parte,  48  Tex.  413. 

*  Quinlon  v.  Rogers,  13  Mich.  168 ;  ^  2  Gray,  M. 


240  STATUTES   VOID    IN   PAET. 

independently,  and  some  parts  are  unconstitutional,  all  the 
provisions  which,  are  thus  dependent,  conditional  and  con- 
nected must  fall  with  them."  "  The  object  of  the  act  is  the 
annexation ;  the  merger  of  one  municipality,  and  the  enlarge- 
ment of  the  other.  This  must  necessarily  affect  the  munici- 
pal and  political  rights  of  the  inhabitants  of  both,  guarantied 
as  they  are  by  the  constitution.  The  legislature  manifestly 
felt  it  to  be  their  duty,  in  accomplishing  this  object,  to  make 
provision  for  the  preservation  of  these  constitutional  rights ; 
if  this  object  is  not  effectually  accomplished,  we  have  no 
ground  on  which  to  infer  that  the  legislatm-e  would  have  sanc- 
tioned such  annexation  and  its  consequences.  The  various 
provisions  of  the  act,  therefore,  all  providing  for  the  conse- 
quences of  such  annexation,  more  or  less  immediate  or  remote, 
are  connected  and  dependent ;  the  different  provisions  of  the 
act  look  to  one  object  and  its  incidents,  and  are  so  connected 
with  each  other  that,  if  its  essential  provisions  are  repugnant 
to  the  constitution,  the  entire  act  must  be  deemed  unconstitu- 
tional and  void."  The  doctrine  of  this  case  has  been  gener- 
ally approved  and  acted  upon.^ 

§  177.  An  act  created  an  office  and  defined  the  powers  and 
duties  as  well  as  fixed  the  compensation  of  the  incumbent. 
The  part  which  defined  the  powers  and  duties  violated  a  con- 
stitutional rule  of  uniformity  and  was  held  void ;  this  part  be- 
ing inducement  to  the  residue  fixing  the  compensation,  the 
latter  was  held  void  also.^  So  where  a  statute  annexed  to  a 
city  certain  lands  lying  outside  of  its  limits,  but  contained  a 
proviso  that  the  lands  so  annexed  should  be  taxed  at  a  differ- 
ent and  less  rate  than  other  lands  in  the  city,  and  this  proviso 
was  unconstitutional,  the  principle  under  consideration  was 
held  applicable,  and  the  act  was  inoperative.^  Where,  how- 
ever, a  statute  gave  authority  to  municipalities  competitively 
to  make  proposals  to  procure  the  location  therein  of  a  normal 

1  Commonwealth   v.  Hitcliings,  5  gar,  49  Cal.  117 ;  State  v.  Stark,  18 

Gray,  482 ;  Jones  v.  Robbins,  8  Gray,  Fla,   255 ;    Sparliawk    v.   Sparliawk, 

329,  339 ;  State  ex  reL  v.  Commission-  116  Mass.  315,  320 ;  People  v.  Cooper, 

ers,  etc.  5  Ohio  St.  497 ;  State  v.  Sinks,  83  IlL  585 ;  Hinze  v.  People,  92  HL 

42    Ohio   St.    345;    Central   Branch  406. 

Union  P.  R.  Co.  v.  Atchison,  etc.  R.  2  state  ex  reL  v.  Dousman,  28  Wis. 

R.  Co.  28  Kan.  453 ;  S.  C.  10  Am  «&  541. 

Eng.  R  R,  Cas.  528 ;  Rood  v.  McCar-  3  Slauson  v.  Racine,  13  Wis.  398. 


STATUTES    VOID    IN    PART.  241 

school,  and  gave  power  of  local  taxation  to  carry  accepted 
proposals  into  effect,  the  latter  provision  was  not  affected  by 
the  unconstitutionality  of  the  appropriation  made  in  the  act, 
for  support  of  such  schools.  The  court  held  that  by  establishing 
the  schools  and  inducing  contributions  from  others,  the  legis- 
lature assumed  the  duty  of  supporting  them ;  the  particular 
provision  which  it  has  attempted  to  make  for  that  purpose 
being  objectionable,  it  must  be  assumed  that  the  legislature 
will  regard  it  as  their  duty  to  provide  a  substitute.^ 

§  178.  The  valid  part  must  be  complete  ami  accord  with 
legislative  intent. —  One  part  of  a  statute  may  be  distinct  in 
the  text  and  literally  separable  from  the  rest,  and  yet  be  in- 
dissolubly  connected  with  it  in  the  legislative  intent.  The 
mere  fact  that  the  one  part  standing  alone  would  be  within  the 
scope  of  the  legislative  power  does  not  necessarily  prove  that 
it  can  be  upheld  when  coupled  with  other  matter.  The  court 
in  Meshmeier  v.  State  ^  uttered  sound  logic  and  sound  law :  "  It 
would  seem  that  the  provisions  of  the  statute  held  to  be  con- 
stitutional, should  be  substantially  the  same  when  considered 
by  themselves  as  when  taken  in  connection  with  the  other 
parts  of  the  statute  held  to  be  unconstitutional;  or,  in  other 
words,  where  that  part  of  a  statute  which  is  unconstitutional 
so  Umits  and  qualifies  the  remaining  portion  that  the  latter, 
when  stripped  of  such  unconstitutional  provisions,  is  essentially 
different,  in  its  effect  and  operation,  from  what  it  would  be 
were  the  whole  law  valid,  it  would  seem  that  the  whole  law 
should  fall.  The  remaining  portion  of  the  statute,  when  thus 
stripped  of  its  limitations  and  qualifications,  cannot  have  the 
force  of  law,  because  it  is  not  an  expression  of  the  legislative 
wlQ.  The  legislature  pass  an  entire  statute,  on  the  supposi- 
tion, of  course,  that  it  is  all  valid  and  to  take  effect.  The 
courts  find  some  of  its  essential  elements  in  conflict  with  the 
constitution ;  strip  it  of  those  elements,  and  leave  the  remain- 
ing portion  mutilated  and  transformed  into  a  different  thing 
from  what  it  was  when  it  left  the  hands  of  the  leiiislatm^e. 
The  statute  thus  emasculated  is  not  the  creature  of  the  legisla- 
ture; and  it  would  be  an  act  of  legislation  on  the  part  of  the 
court  to  put  it  in  force." 

1  Gordon  v.  Cornes,  47  N.  Y.  608.  2  n  ind.  482,  485. 

16 


242  STATUTES    VOID    IN    PART. 

§  179.  If,  by  striking  out  a  void  exception,  proviso  or  otlicr 
restrictive  clause,  the  remainder,  by  reason  of  its  generality, 
will  have  a  broader  scope  as  to  subject  or  territory,  its  opera- 
tion is  not  in  accord  with  the  legislative  intent,  and  the  whole 
would  be  affected  and  made  void  by  the  invalidity  of  such  part. 

An  act  of  a  general  nature  which  the  constitution  required 
to  have  a  uniform  operation  throughout  the  state  excepted 
certain  counties  from  its  operation.  This  rendered  the  whole 
act  void.  After  strilving  out  the  exception,  if  the  general  words 
gave  the  act  operation  in  the  excepted  counties,  such  effect 
would  be  directly  contrary  to  the  expressed  intent  of  the  law- 
maker.^ A  like  principle  is  declared  in  the  case  of  Spraigue 
V.  Thompson.^  The  states  were  authorized  by  an  act  of  con- 
gress to  make  regulations  relative  to  pilots  in  bays,  inlets, 
rivers,  harbors  and  ports  of  the  United  States,  but  they  were 
expressly  prohibited  fi'om  making  any  discriminations  in  the 
rate  of  pilotage  between  vessels  sailing  between  the  ports  of 
different  states,  and  existing  regulations  making  such  discrim- 
inations were  annulled  and  abrogated,  A  statute  of  Georgia 
excepted  coasters  in  that  state  and  coasters  between  the  ports 
of  that  state  and  those  of  South  Carolina  and  Florida.  The 
exception  was  held  a  discrimination  within  the  prohibition,, 
and  the  court  said  if  the  exception  only  is  affected  the  legisla- 
ture of  Georgia  is  made  to  enact  what  confessedly  it  never 
meant,  by  giving  the  statute  an  operation  beyond  the  limits 
specified  by  the  legislature.  The  exception,  therefore,  could 
not  be  rejected  and  the  remainder  held  valid ;  the  whole  was 
treated  as  annulled  and  abrogated. 

§  180.  A  provision  which  states  a  contingency  on  which  the 
act  is  or  is  not  to  take  effect,  whether  it  be  the  result  of  a 
popular  vote  or  some  other,  is  not  independent  and  separable ; 
for  the  intent  of  the  law-maker  is  therein  expressly  declared,  and 
the  statute  cannot  on  principle  take  effect  contrary  to  that  in- 
tent though  it  be  expressed  in  a  section  wholly  unconstitutional.* 

iKelley  v.  State,  6  Oliio  St.  209;  Tliorne    v.   Cramer,   15    Barb.    112; 

State  ex  reL  v.  Supervisors,  63  Wis.  Parker  v.  Commonwealth,  6  Pa.  St 

376,  379.    See  State  v.  Hanger,  5  Ark.  507 ;  Meshmeier  v.  State,  11  Ind.  482 ; 

412.  Lathrop  v.   MiUs,  19  CaL   513.     See 

» 118  U.  S.  90.  Santo  v.  State,  2  Iowa,  165 ;  State  v. 

»Barto  V.  Himrod,  8  N.   Y.   488;  Copeland,  3  R  L  33. 


STATUTES    VOID    IN    PART.  2i3 

If  the  parts  of  a  statute  are  so  connected  as  to  warrant  the 
conclusion  that  the  legislature  intended  them  as  a  whole,  and 
would  not  have  enacted  the  part  hold  valid  alone,  when  a  part 
is  unconstitutional,  they  are  not  separable ;  if  one  part  is  void 
the  whole  is  void.^  This  conclusion  should  be  based  upon  a 
consideration  of  the  act  and  a  comparison  of  its  effects  with 
and  without  the  void  part,  by  considering  the  connection  and 
relative  operation  of  the  vaUd  and  invalid  provisions.^  Where 
two  provisions  of  a  statute  are  so  dependent  upon  one  another 
that  one  cannot  stand  alone  without  a  manifest  perversion  of 
the  legislative  intent,  and  the  other  is  void,  the  whole  act  is 
void.^ 

lEckhart  v.  State,  5  W.  Va.  515;  Childs  v.  Shower,  18  Iowa,  261;  La- 
Warren  V.  Mayor,  etc.  2  Gray,  84 ;  throp  v.  IMills,  19  CaL  513 ;  Centi-al  Br. 
State  V.  Sinks,  42  Ohio  St  345 ;  People  Union  Pac.  R.  R.  Co.  v.  Atchison,  etc. 
ex  reL  v.  Cooper,  83  lU.  595 ;  Hinze  v.  R  R  Co.  28  Kan.  453 ;  S.  C.  10  Am.  & 
People,  92  id  406,  424 ;  State  v.  Pugh,  Eng.  R  R  Cas.  528 ;  Moore  v.  New 
43  Ohio  St  98 ;  Rader  v.  Townsliip  Orleans,  32  La.  Ann.  726 ;  Robinson 
of  Union,  39  N.  J.  L.  509 ;  Flanagan  v.  Bidwell,  22  CaL  379. 
V.  Plainfield,  44  id.  118,  124 ;  State  v.  -  Robinson  v.  Bidwell,  supra;  Sum- 
Commissioners,  38  id.  320 ;  Western  ter  Co.  v.  GainsviUe  Nat  Bank,  62 
Union  TeL  Co.  v.  State,  62  Tex.  630 ;  Ala  464. 
S.  C.  13  Am.  &  Eng.  Corp.  C.  396 ;  3  Burkholtz  v.  State,  16  Lea,  71. 


CHAPTER  X. 


JUDICIAL  NOTICE  AND  PROOF  OF  STATUTES,  AND  THEIR  AU- 
THORITATIVE EXPOSITION. 


181.  Judicial  notice  of  statutes. 
185.  State  statutes  in  federal  courts. 
188.  Foreign  statutes,  how  proved. 


192.  Functions  of  court  and  jury 

in  respect  of  foreign  laws 
proved. 

193.  Private  statutes. 


§  181.  Judicial  notice  of  statutes. —  Courts  of  justice  take 
oificial  notice  of  public  statutes  and  the  general  jurisprudence 
of  the  state  under  whose  authority  they  act.  They  judicially 
know  the  origin  and  history  of  that  jurisprudence,  and  all  the 
facts  which  affect  its  derivation,  validity,  commencement  and 
operation.^  A  state  court  will  take  notice  of  the  federal  con- 
stitution and  amendments  to  it  ^  and  the  public  acts  of  con- 
gress.^ The  courts  of  a  state  carved  out  of  the  territory  of 
another  take  judicial  notice  of  the  statutes  of  the  old  state  in 
force  up  to  the  time  of  the  separation.*  The  states  formed 
from  territory  ceded  by  Spain  wUl  take  notice  of  the  Spanish 
law  existing  prior  to  the  cession  affecting  rights  and  titles  then 
in  beino;.^ 


1  People  V.  Mahaney,  13  Mich.  481 ; 
Town  of  South  Ottawa  v.  Perkins,  94 
U.  S.  200 ;  Post  V.  Supervisors,  105  id. 
667;  Opinion  of  Justices,  52  N.  H. 
622;  Berry  v.  Baltimore,  etc.  R  R. 
Co.  41  Sid.  446 ;  People  v.  De  Wolfe, 
62  111.  253 ;  Supervisors  v.  Heenan,  2 
Minn.  336 ;  Coburn  v.  Dodd,  14  Ind. 
347 ;  Moody  v.  State,  48  Ala.  115 ;  De 
Bow  V.  People,  1  Denio,  9 ;  Commer- 
cial Bank  v.  Sparrow,  2  id.  97 ;  Purdy 
V.  People,  4  Hill,  384 ;  Ryan  v.  Lyncli, 
68  IlL  100 ;  Lanning  v.  Carpenter,  20 
N.  Y.  447 ;  Lusher  v.  Scites,  4  W.  Va. 
11 ;  Rumsey  v.  People,  19  N.  Y.  48 
Lorman  v.  Benson,  8  Mich.  18,  25 
Stokes   V.    Macken,    63    Barb.    145 


Neeves  v.  Bun-age,  14  Ad.  &  EL  (N.  S.) 
504. 

2  Graves  v.  Keaton,  3  Cold.  8. 

3  Dickenson  v.  Breeden,  30  HL  279 ; 
Gooding  v.  Morgan,  70  id.  275 ;  Papin 
V.  Ryan,  33  Mo.  31 ;  Kessel  v.  Albetis, 
56  Barb.  363;  Semple  v.  Hagar,  27 
CaL  163;  Rice's  Succession,  21  La, 
Ann.  614 ;  Morris  v.  Davidson,  49  Ga. 
361 ;  Flanigen  v.  Washington  Ins. 
Co.  7  Pa.  St.  306 ;  Bayly  v.  Chubb,  16 
Gratt.  384. 

*  Delano  v.  Jopling,  1  Litt.  417 ; 
Berluchaux  v.  Berluchaux,  7  La.  539. 

5  United  States  v.  Tiu-ner,  11  How. 
663,  668 ;  United  States  v.  King,  7  id. 
883;  United  States  v.  Philadelphia, 


JUDICIAL   NOTICE    A.XD    TKOOF    OF    STATUTES,  ETC.  245 

§  182.  The  courts  will  inform  themselves  of  facts  which 
may  affect  a  statute ;  for  example,  the  precise  time  when  it 
was  aj)proved,  to  determine  its  existence,  commencement  or 
any  other  fact  for  like  purpose.^  They  will  take  notice  of  the 
terms  in  which  an  act  was  passed,  though  they  dilfer  from 
those  of  the  officially  published  statutes.-  Xo  issue  by  plead- 
ing can  be  made  by  the  parties  involving  such  facts  to  be  tried 
by  evidence.^  The  judges  make  the  proper  inquiry  to  inform 
themselves  in  the  best  way  they  can.  An  eminent  jurist  says : 
"  An  act  of  parliament,  made  within  the  time  of  memory,  loses 
not  its  being  so  because  not  extant  of  record,  especially  if  it 
be  a  general  act  of  parliament.  For  of  the  general  acts  of 
parliament  the  courts  of  common  law  are  to  take  notice  with- 
out pleading  them.  And  such  acts  shall  never  be  put  to  be 
tried  by  the  record  upon  an  issue  of  nul  tiel  record,  but  shaU 
be  tried  by  the  court,  who,  if  there  be  any  difficulty  or  uncer- 
tainty touching  it,  or  the  right  of  pleading  it,  are  to  use  for 
their  information  ancient  copies,  transcripts,  books,  pleadings 
and  memorials  to  inform  themselves,  but  not  to  admit  the 
same  to  be  put  in  issue  by  a  plea  of  nul  tiel  record.  Tor,  as 
shall  be  shown  hereafter,  there  are  many  old  statutes  which 
are  admitted  and  obtain  as  such,  though  there  be  no  record 
at  this  day  extant  thereof;  nor  yet  any  other  written  evi- 
dence of  the  same,  but  which  is  in  a  manner  only  traditional, 
as  namely,  ancient  and  modern  books  of  pleading  and  the 
common  received  opinion  and  reputation  and  approbation  of 
the  judges  learned  in  the  law,"  * 

§  183.  In  this  country  the  inquiry  may  have  more  range ; 
the  existence  or  validity  of  statutes,  under  constitutions,  will 
depend  on  a  greater  variety  of  facts  open  to  investigation. 
While  the  constitution  or  a  statute  may  provide  what  shall  be 

11  id.  609 ;  Arguello  v.  United  States,  nedj'  v.  Palmer,  6  Gray,  316 ;  Bm-gess 

18  id.  550;  Fremont  v.  United  States,  v.  Salmon,  97  U.  S.  381 ;   ante,  §  110. 

17  id.  543 ;  Chouteau  v.  Pierre,  9  Mo.  -  Gardner  v.  The  Collector,  supra ; 

3 ;  Ott  V.  Soulard,  id.  581 ;  Doe  v.  Es-  Purdy  v.  People,  4  Hill,  384 ;  De  Bow 

lava,  11  Ala.  1028.  v.  People,  1  Denio,  14 ;  State  v,  Piatt, 

1  Garchier  v.  The  CoUector,  6  Wall.  2  S.  C.  150 ;  Brady  v.  West,  50  JMiss. 

499 ;  Louisville  v.  Savings  Bank,  104  68. 

U.  S.  469 ;   Cargo  of  Brig  Aurora  v.  =*  Town  of  South  Ottawa  v.  Perkins, 

United  States.  T  ( 'ranch,  383 ;  Lapeyre  94  U.  S.  260. 

V.  United  States,  IT  Wall.  191 ;   Ken-  <  Hale's  His.  Com.  L.  14,  16. 


246  JUDICIAL    ITOTICE    AJSTD    PKOOF    OF    STATUTES,  ETC. 

conclusive  evidence,^  tlie  inquiry  is  not  generally  so  restricted, 
and  the  general  principle  governs  that  record  or  constitutional 
evidence  must  be  adduced  to  impeach  a  statute  the  record  of 
which  is  fair  on  its  face.^  Where  the  purpose  is  not  to  inval- 
idate the  statute,  but  to  give  it  effect,  to  ascertain  the  fact  on 
which  the  taking  effect  depends,  or  to  ascertain  the  time  more 
precisely  than  appears  by  the  record,  any  source  of  information 
which  is  capable  of  conveying  to  the  judicial  mind  a  clear  and 
satisfactory  answer  is  available.'  Extraneous  facts  relating  to 
the  subject  of  a  statute  fair  on  its  face,  or  the  procedure  to 
enact  it,  will  not  be  considered  for  the  purpose  of  overturning 
it  for  some  infraction  of  the  constitution,  unless  a  statute  or 
the  constitution  itself  has  provided  for  such  proof.*  In  the 
absence  of  such  provisions,  a  court  cannot  resort  to  the  legis- 
lative rolls  and  journals  for  the  puspose  of  examining  as  to 
whether  the  bill  as  passed  is  the  same  as  the  bill  certified ;  * 
nor  for  the  purpose  of  determining  whether  the  statute  passed 
in  conformity  with  the  rules  adopted  by  the  legislature  for  its 
own  government.^  It  cannot  resort  to  extrinsic  evidence  to 
show  that  the  certified  and  published  law  actually  passed.'' 

§  184.  The  written  law  of  a  state  embraces  as  weU  the  stat- 
utes in  force  at  the  time  of  its  organization,  and  not  in  con- 
flict with  its  constitution,  as  those  subsequently  enacted.^  The 
laws  of  England,  written  and  unwritten,  or,  as  it  has  been  other- 

1  Town  of  South  Ottawa  v.  Perkins,  173 ;  Louisville  v.  Savings  Bank,  104 
94  U.  S.  260.  U.  S.  4G9 ;  Gardner  v.  The  CoUector, 

2  English  V.   Oliver,   28  Ark.  317;     6  Wall.  499. 

Worthen  v.  Badgett,  32  id.  496 ;  State  ^Ante,  §  28 ;  Matter  of  Chui-ch,  28 

V.  Swift,  10  Nev.  176 ;  State  v.  Hast-  Hun,  476 ;  Matter  of  New  York  Ele- 

ings,  24  Mum.  78 ;  Larrison  v.  Peoria,  vated  R.  R  Co.  70  N.  Y.  327,  351 ; 

etc.  R.  R.  Co.  77  IlL  11 ;  Pangborn  v.  South  Ottawa  v.  Perkins,  94  U.  S.  260. 

Young,  32  N.  J.  L.  29 ;  Legg  v.  Mayor,  5  Pangborn  v.  Young,  32  N.  J.  L.  29 ; 

etc.  42  Md.  203,  224 ;  State  v.  County  Sherman  v.  Story,  30  CaL  253 ;  Cole- 

of  Dorsey,   28  Ark.  378 ;   Wall,   Ex  man  v.  Dobbms,  8  Ind.  156 ;  Grob  v. 

parte,  48  CaL  279 ;  Happel  v.  Bret-  Cushman,  45  111.  119 ;  Green  v.  Wel- 

hauer,  70  IlL  166 ;  Rumsey  v.  People,  ler,  32  Jliss.  650 ;  1  Whart   on  Ev. 

19  N.  Y.  48 ;  De  Camp  v.  Eveland,  19  §  290. 

Barb.  88 ;  Lanning  v.  Carpenter,  20  « Id. 

N.  Y.  447 ;    Buncombe  v.  Prindle,  13  ^  Mayor,  etc.  v.  Harwood,  32  Md.  471, 

Iowa,  1 ;  Lusher  v.  Scites,  4  W.  Va.  8  American  Ins.   Co.   v.  Canter,  1 

11.    See  Bradley  v.  Commissioners,  2  Pet.  511 ;  Brice  v.  State,  2  Overt.  254 : 

Humph.  428 ;  Ford  v.  Farmer,  9  id.  152.  Egnew  v.  Cochrane,  2  Head,  320 ;  Lee 

3  Wells  V.  Bright,  4  Dev.  &  Batt.  L.  v.  Kmg,  21  Tex.  577. 


JUDICIAL   NOTICE   AND    PROOF   OF    STATUTES,  ETC. 


2ir 


avise  expressed,  the  common  law  and  all  the  statutes  of  parlia- 
ment in  aid  of  the  common  law,  in  force  at  the  time  of  the 
emigration  to  this  country,  were  brought  hither  by  the  emi- 
grants who  first  settled  the  original  colonies,  as  a  birthright, 
so  far  as  those  laws  were  suitable  to  the  cu-cumstances  and 
conditions  which  existed  in  the  new  country.^  To  them  they 
were  unwritten  laws.  Subsequent  acts  of  parliament  did  not 
affect  the  colonies  unless  named  or  the  acts  related  to  the  pre- 
rogativ^es  of  the  crown.^ 

In  states  formed  from  colonies  settled  by  Englishmen,  and 
in  those  which  are  shown  to  have  adopted  the  common  law 
by  statute  or  constitution,  it  will  be  presumed  to  continue  as 
a  system  of  jurisprudence.  And  recognizing  its  existence  in 
another  state,  the  court  will  take  notice  of  its  principles,^  but 
not  of  any  peculiarities,  exceptional  in  the  foreign  state  and  di- 
vergent from  the  law  of  the  court.     On  principle,  the  courts 


1 2  P.  Wms.  75 ;  Blankard  v.  Galdy,  2 
Salk,  411;    Scott  v.   LunL's    Adm'r, 

7  Pet  603 ;  Commonwealth  v.  Knowl- 
ton,  2  Mass.  534;  O'Ferrall  v.  Sim- 
plot,  4  Iowa,  400;  Dodge  v.  Will- 
iams, 46  Wis.  92;  Gardner  v.  Cole, 
21  Iowa,  205 ;  Williams  v.  Williams, 

8  N.  Y.  541;  CaUoway  v.  Willie's 
Lessee,  2  Yerg.  1 ;  Clawson  v.  Prim- 
rose, 4  Del.  Ch.  643,  652 ;  Stmnp  v. 
Napier,  2  Yerg.  35;  Carter  v.  Bal- 
fom-,  19  Ala.  814;  Horton  v.  Sledge, 
29  id.  478 ;  Nelson  v.  3IcCrary,  60  id. 
801 ;  McCorry  v.  King,  3  Humph.  267 ; 
Webster  v.  Morris,  66  Wis.  366 ;  Co- 
bm-n  V.  Harvey,  18  id.  147 ;  Sackett  v. 
Sackett,  8  Pick.  309 ;  Briice  v.  Wood, 
1  Met.  542 ;  Commonwealth  v.  Church- 
ill, 2  id.  123 ;  Stout  v.  Keyes,  2  Doug. 
(Mich.)  184;  PoweU  v.  Brtmdon,  24 
]\liss.  363 ;  Jacob  t.  State,  3  Humph. 
493 ;  Griffith  v.  Beasly,  10  Yerg.  434 ; 
Drew  V.  Wakefield,  54  Me.  291 ;  Pem- 
ble  V.  ClifYord,  2  IMcCord,  31 ;  Gough 
V.  Pratt,  9  :Md.  526 ;  Canal  Com'rs  v. 
People,  5  AVeud.  445 ;  Fowler  v.  Stone- 
um,  11  Tex.  478;  Boehm  v.  Engle, 
1  Dall.  15 ;  Ayres  v.  Methodist  Ch.  etc. 


3  Sai  df.  :568 ;  Attorney-Gen.  v.  Stew- 
art, 2  l\ieriv.  162 ;  Van  Ness  v.  Pacard, 

2  Pet  137;  Tappan  v.  Campbell,  9 
Yerg.  436;  Cathcart  v.  Kobinsou,  5 
Pet  280. 

2  Matthews  v.  Ansley,  31  Ala.  20; 
Cai-ter  v.  Balfour,  19  id.  829 ;  McKin- 
eron  v.  Bhss,  31  Barb.  ISO ;  Sackett  v. 
Sackett,  8  Pick.  309 :  Commonwealth 
V.  Kjiowlton,  2  Mass.  534;  Porter's 
Lessee  v.  Cocke,  Peck,  30 ;  Preston  v. 
Sm'goine,  id.  80 ;  Chapron  v.  Cassaday, 

3  Humph.  661;  RoKe  v.  McComb, 
2  Head,  558 ;  Smith  v.  Mitchell,  Rice, 
316 ;  Stokes  v.  Macken,  62  Barb.  145. 

3  Cressey  v.  Tatom,  9  Or.  542 ;  Good- 
win V.  Mon-is,  id.  322;  Norris  v. 
Harris,  15  Cal.  226 ;  Wallace  v.  Bm-den, 
17  Tex.  467 ;  Yardeman  v.  Lawson, 
id.  10;  Holmes  v.  Broughton,  10 
Wend.  75;  1  Whart  on  Ev.  §  814; 
McDeed  v.  McDeed,  67  IlL  545; 
limgsley  v,  Kingsley,  20  id  203; 
Abel  V.  Douglass,  4  Demo,  305 ;  An- 
di*ews  V.  Hoxie,  5  Tex.  171 ;  Titxis  v. 
Scauthng,  4  Blackf.  89;  Smith  v. 
Baitram,  11  Oliio  St  691. 


24S 


JUDICIAL    XOTICE    AND    TROOF    OF    STATUTES,  ETC. 


of  one  state  cannot  presume  the  existence  of  any  other  law  in 
another  state.  The  circumstance  that  a  written  law  modifying 
or  supplementing  the  common  law  has  been  enacted  in  the  state 
where  the  court  sits  is  no  evidence  that  a  like  statute  has  been 
passed  in  another  state.^  It  has,  however,  often  been  decided  that 
where  a  case  or  defense  depends  on  the  law  of  another  state, 
and  that  law  has  not  been  proved,  the  court  will  presume  it 
to  be  the  same  as  that  which  is  in  force  in  its  own  jurisdic- 
tion.-^ If  this  were  the  common  law  the  presumption  would 
be  natural,  logical,  legal,^  but  the  cases  are  not  so  confined ; 
the  presumption  is  applied  literally  and  comprehensively.* 
The  result  would  be  the  same  and  its  basis  would  be  more 
satisfactory  if  the  principle  were  formulated  thus:  the  law 


1  Kermott  v.  Ayer,  11   Mich.  181 ; 
Ellis  T.  Maxson,  19  id.  186. 

^Territt  v.  Woodi-uff,  19  Vt.  182; 
Pauska  v.  Daus,  31  Tex.  67 ;  McDon- 
ald V.  Myles,  12  Sm.  &  M.  379 ;  Har- 
ris V.  Allnutt,  12  La.  465;  Mason 
V.  Mason's  Widow,  id.  589 ;  Dwight 
T.  Richardson,  12  Sm.  &  M.  325 
Bemis  v.  McKenzie,  13  Fla.  558 
Holley  T.  HoUey,  Lit.  SeL  Cas.  505 
Selking  v.  Hebel,  1  Mo.  App.  340 
Paget  V.  Curtis,  15  La.  Ann.  451 
Nalle  V.  Ventress,  19  id.  373;  AUen 
T.  Watson,  2  Hill  (S.  C),  319 ;  Des- 
uoyer  v.  McDonald,  4  Minn.  515 ; 
Wliidden  v.  Seelye,  40  Me.  247; 
Thurston  v.  Percival,  1  Pick.  415; 
Fouke  V.  Fleming,  13  Md.  392,  407 ; 
Surlott  V.  Pratt,  3  A.  K  Marsh. 
174 ;  Thomas  v.  Beckman,  1  B.  Mon. 
29,  34 ;  Prince  v.  Lamb,  Breese,  378 ; 
Leavenworth  v.  Brockway,  2  Hill, 
201;  Crozier  v.  Hodges,  3  La.  357; 
HaU  T.  Woodson,  13  Mo.  462 ;  Lou- 
gee  V.  Washbm-n,  16  N.  H.  134; 
Stokes  V,  Macken,  62  Barb.  145 ;  Lang- 
don  V.  Young,  33  Vt.  136 ;  Chase  v. 
Ins.  Co.  9  AUen,  311 ;  Cluff  v.  Ins. 
Co.  13  id.  308 ;  ConoUy  v.  Riley,  25 
Md.  402;  Green  v.  Rugely,  23  Tex. 
539 ;  HaU  v.  PiUow,  31  Ark.  32 ;  Hyd- 


rick  V.  Bm-ke,  30  id.  124 ;  Warren  t. 
Lusk,  16  Mo.  102;  Houghtailing  v. 
Ball,  19  Mo.  84 ;  Lucas  v.  Ladew,  28  id. 
342 ;  Robinson  t.  Dauchy,  3  Barb.  20 ; 
Pomeroy  v.  Ainsworth,  22  id.  118; 
Huth  V.  Ins.  Co.  8  Bosw.  538 ;  AVright 
V.  Delafield,  23  Barb,  498 ;  Bradley  v. 
Ins.  Co.  3  Lans.  341 ;  Savage  v. 
O'NeU,  44  N.  Y.  298 ;  Smith  v.  Smith, 
19  Gratt  545;  Bean  v.  Briggs,  4 
Iowa,  464 ;  Crafts  v.  Clark,  38  Iowa, 
237;  Crake  v.  Crake,  18  Ind.  156; 
Davis  V.  Rogers,  14  Ind.  424 ;  Crane 
V.  Hardy,  1  Midi.  56 ;  EUis  v.  Maxson, 
19  id.  186 ;  Cooper  v.  Reaney,  4  Minn. 
528 ;  Brimhall  v.  Van  Campen,  8  id. 
13;  Rape  v.  Heaton,  9  Wis.  328; 
Walsh  V.  Dart,  12  Wis.  635 ;  State  v. 
Patterson,  2  Ired.  L.  346 ;  Atkinson 
V.  Atkinson,  15  La.  Ann.  491 ;  Hick- 
man V.  Alpaugh,  21  Cal.  225 ;  HUl  v. 
Grigsby,  82  Cal.  55 ;  Mostyn  v.  Fab- 
rigas,  1  Co%vper,  174;  Smith  v. 
Gould,  4  Moore,  P.  C.  21;  State  v. 
Cross,  68  Iowa,  180;  Van  Wyck  v. 
HUls,  4  Rob.  140;  PhUa.  Bank  v. 
Lambeth,  4  Rob.  463. 

3  See    Diez,  In  re,   56    Barb.  591; 
Lockwood  V.  Crawford,  18  Conn.  C61.- 

4  Id. 


JUDICIAL    NOTICE    AND    TEOOF    OF    STATUTE?,  ETC.  24:9 

of  another  state  in  certain  cases  is  a})|)]icd  by  comity,  when 
proved;  if  not  proved,  there  is  no  coiuity  invoked,  and  the 
lex  fori  governs.^ 

In  Monroe  v,  Douglass,^  Foot,  J.,  speaking  for  the  court  of 
appeals,  said :  "  It  is  a  well-settled  rule,  founded  on  reason  and 
authority,  that  the  lex  fori,  or,  in  other  words,  the  laws  of  the 
country  to  whose  courts  a  party  appeals  for  redress,  furnish, 
in  all  cases,  prima  facie,  the  rule  of  decision ;  and  if  either 
party  wishes  the  benefit  of  a  different  rule  of  law,  as,  for  in- 
stance, the  lex  domicilii,  lex  loci  contractus,  or  the  lex  rei  sitoB, 
he  must  aver  and  prove  it." ' 

§  185.  State  statutes  in  the  federal  courts. —  It  was  enacted 
by  congress  in  1789  "  that  the  laws  of  the  several  states,  ex- 
cept where  the  constitution,  treaties  or  statutes  of  the  United 
States  shall  otherwise  require  or  provide,  shall  be  regarded 
as  rules  of  decision  in  trials  at  common  law  in  the  courts  of 
the  United  States  in  cases  where  they  apply."  *  The  circuit 
courts  of  the  United  States  are  created  by  congress,  not  for 
the  purpose  of  administering  the  local  law  of  a  single  state 
alone,  but  to  administer  the  laws  of  all  the  states  in  the 
Union,  in  cases  to  which  they  respectively  apply.  The  judi- 
cial power  conferred  on  the  general  government,  by  the  con- 
stitution, extends  to  many  cases  arising  under  the  laws  of 
the  different  states.  And  the  supreme  court  is  caUedupon,  in 
the  exercise  of  its  appellate  jurisdiction,  constantly  to  take 
notice  of  and  administer  the  jurisprudence  of  all  the  states. 
That  jurisprudence  is  then,  in  no  just  sense,  a  foreign  juris- 
prudence, to  be  proved  in  the  courts  of  the  United  States  by 
the  ordinary  modes  of  proof  by  which  the  laws  of  a  foreign 

iSee    O'Roiu-ke    v.    O'Rourke,    43  O'Conner,  28  Vt   77G;  ^\nudden  v. 

!Mich.  58 ;  Martin  v.  Martin,  1  Sm.  &  Seelye,  40  ]\Ie.  247 ;  Stokes  v.  ]\racken, 

M.  176 ;  Bock  v.  Lauman,  24  Pa.  St  62  Barb.  145 ;  Bristow  v.  Sequeville, 

435 ;  Peacock  v.  Banks,  Minor  (Ala.),  5  Ex.  275,  279 ;  Lide  v.  Parker,  60  Ala. 

387;  Williams  v.  Wade,  1   Met  82;  165. 

Greenwade  v.   Greenwade,  3  Dana,  -o'^.Y.  447,  452. 

495 ;  McDonald  v.  Myles,  13  S.  &  M.  » Norris    v.    Harris,    15  CaL    254 ; 

279 ;  Story's  Conf.  L.  (7th  ed.)  §  637a;  Greenwade  v.   Greenwade,   3  Dana, 

Monroe    v.   Douglass,   5  N.   Y.   447 ;  497 ;  Tarlton  v.  Briscoe,  4  Bibb,  73 ; 

Bean  v.  Briggs,  4  Iowa,  464;  Sayi-e  v.  Thurston  v.  Percival,  1  Pick.  415. 

Wlieeler,  32  Iowa,  559 ;  AUen  v.  Wat-  •*  Sec.  34,  Judiciary  Act  1789, 1  Stat 

son,  2  Hill  (S.  C),  319 ;  Woodrow  v.  at  Large,  92 ;  sec.  721,  R.  S.  U.  S. 


250  JUDICIAL    NOTICE    A'ST)    TKOOF    OF    STATUTES,  ETC. 

country  are  to  be  establislied ;  but  it  is  to  be  judicially  taken 
notice  of  in  the  same  manner  as  the  laws  of  the  United  States 
are  taken  notice  of  by  these  courts.'  The  relation  in  which 
the  circuit  courts  of  the  United  States  stand  to  the  states  in 
which  they  respectively  sit  and  act  is  precisely  that  of  their 
own  coui'ts  as  to  the  rules  of  decision.^  A  party  forfeits  noth- 
ing by  going  into  a  federal  tribunal.  Jurisdiction  having  at- 
tached, his  case  is  tried  there  upon  the  same  principles,  and  its 
determination  is  governed  by  the  same  considerations,  as  if  it 
had  been  brought  in  the  proper  state  tribunal  of  the  same  lo- 
cality.* The  law  of  any  state  of  the  Union,  whether  depend- 
ing upon  statutes  or  upon  opinions,  is  a  matter  of  which  the 
courts  of  the  United  States  are  bound  to  take  notice  without 
plea  or  proof. ^  It  thus  appears  that  the  comets  of  the  United 
States  have  jurisdiction  to  administer  a  jurisprudence  not 
wholly  nor  chiefly  within  the  domain  of  congress.  They  ad- 
minister between  the  proper  parties  the  jurisprudence  of  the 
states.  They  are  governed  hke  the  state  courts  by  the  vahd 
statutes  of  the  state.  Where  no  federal  question  is  involved, 
they  follow  the  decisions  of  the  highest  court  of  the  state  in  its 
construction  of  its  own  constitution  or  other  written  laws.^ 

1  Owings  V.  HuU,  9  Pet.  607,  624 ;  3  McNiel,  Ex  parte,  13  Wall  236, 
Bennett  v.  Bemiett,  Deady,  309,  311 ;  243 ;  Clark  v.  Smith,  13  Pet.  195 ; 
Pennington  t.  Gibson,  16  How.  65,  McNiel  v.  Holbrook,  12  Pet.  84 ;  Part- 
81 ;  Railroad  Co.  v.  Bank  of  Ashland,  ridge  v.  The  Ins.  Co.  15  Wall.  578, 
12  WalL  229 ;  Covington  Drawbridge  580 ;  Lorman  v.  Clarke,  2  McLean,  568. 
Co.  V.  Shepherd,  20  How.  227;  El-  ^Lainar  v.  Micou,  114  U.  S.  218, 
wood  V.  Flannigan.  104  U.  S.  568;  223;  Hanley  v.  Donoghue,  116  id.  6. 
Course  V.  Stead,  4  Dall.  27,  n. ;  Cheever  5  Township  of  Elmwood  t.  Marcy, 
V.  Wilson,  9  WaU.  108;  Griffing  v.  92  U.  S.  289;  Allen  v.  Massey,  17 
Gibb,  2  Black,  519;  Jones  v.  Hayes,  WalL  354;  Leffingwell  v.  Warren,  2 
4  McLean,  521;  Gordon  v.  Hobart,  Black,  599;  Townsend  v.  Todd,  91 
2  Suinner,  401 ;  Mewster  v.  Spaldmg,  U.  S.  452 ;  Tioga  R.  R.  Co.  v.  Bloss- 
6  McLean,  24 ;  Smith  v.  TaUapoosa,  burg,  etc.  R.  R.  Co.  20  Wall.  137 ;  Har- 
2  Woods,  574 ;  Merrill  v.  Dawson,  pending  v.  Dutch  Chm-ch,  16  Pet.  493 ; 
Hempst.  563 ;  Woodworth  v.  Spaf-  Supervisors  v.  United  States,  18  WalL 
fords,  2  McLean,  168 ;  Bird  v.  Com-  71,  81 ;  Gut  v.  State,  9  id.  35 ;  Gelpcke 
monwealth,  21  Gratt.  800 ;  Gormley  v.  Dubuque,  1  id.  175 ;  Chi-isty  v. 
V.  Clark,  134  U.  S.  338 ;  Case  v.  KeUy,  Pridgeon,  4  id.  196 ;  Adams  v.  Nash- 
133  id.  21 ;  Louisville,  etc.  R.  R.  Co.  ville,  95  U.  S.  19 ;  Peik  v.  Chicago, 
V.  Mississippi,  id.  587 ;  Peters  v.  Bain,  etc.  R.  Co.  94  id.  164 ;  Stone  v.  Wis- 
id.  670.  cousin,  id.   181 ;  Shelby  v.   Guy,   11 

2  Lessee  of  Livingston  v.  Moore,  7  Wheat.  361 ;  Smith  v.  Kernochen,  7 
Pet.  469,  542.  How.  198 ;  De  Wolf  v.  Rabaud,  1  Pet 


JUDICIAL    NOTICE    AND    PKOOF    OF    STATUTES,  ETC.  251 

§  18G.  Marshall,  C.  J.,  lias  thus  defined  coinprehensively 
the  priinaiy  authority  to  interpret  laws :  "  This  court  has  uni- 
formly professed  its  disposition,  in  cases  depending  on  the 
laws  of  a  particular  state,  to  adopt  the  construction  which  the 
courts  of  the  state  have  given  to  those  laws.  This  course  is 
founded  on  principles  supposed  to  be  universally  recognized, 
that  the  judicial  department  of  every  government,  where  such 
department  exists,  is  the  appropriate  organ  for  construing  the 
legislative  acts  of  that  government.  Thus,  no  court  in  the 
universe,  which  professed  to  be  governed  by  principle,  would, 
we  presume,  undertake  to  say  that  the  courts  of  Great  Britain, 
or  of  France,  or  of  any  other  nation,  had  misunderstood  their 
own  statutes,  and  therefore  erect  itself  into  a  tribunal  which 
should  correct  such  misunderstanding.  We  receive  the  con- 
struction given  by  the  courts  of  the  nation  as  the  true  sense 
of  the  law,  and  feel  ourselves  no  more  at  Uberty  to  depart 
from  that  construction  than  to  depart  from  the  w^ords  of  the 
statute.  On  this  principle  the  construction  given  by  this  court 
to  the  constitution  and  laws  of  the  United  States  is  received 
by  all  as  the  true  construction ;  and  on  the  same  principle,  the 
construction  given  by  the  courts  of  the  several  states  to  the 
legislative  acts  of  those  states  is  received  as  true,  unless  they 
come  in  conflict  with  the  constitution  or  treaties  of  the  United 
States." ' 

The  federal  courts  will  follow  the  latest  settled  adjudica- 
tions.2  They  are  called  on  to  administer  the  laws  of  the  states, 
and  the  states  are  not  politically  foreign  to  each  other,  though 
there  is  no  connection  between  them  in  legislation;  therefore 
those  courts  take  notice  of  state  laws  when  they  are  officially 
published,  and  only  when  they  are  found  in  the  official  statute 
books  of  the  state.'^ 


479 ;    King  v.   Wilson,   1   Dill.   555 ;  v.  Viles,  3  id.  675 ;   HilcCluny  v.  Silli- 

Union  Horse  Shoe  Works  v.  Lewis,  man,  3  id.  270 ;  United  States  v.  Mor- 

1  Abb.  (U.  S.)  518;  Coates  v.  Muse,  1  rison,  4  id.  124;  City  of  Richmond  v. 

Brock.  539 ;   Newman  v,    Keffer,   1  Smith,  15  AVaU.  429 ;  Shelby  v.  Guy, 

Brunner,  Col.  Cas.  502.  11  AMieat  367. 

lElmendorf V.Taylor,  10 AAHicat.  152,  -'Leffingwell  v.   Warren,   2  Black, 

159;  Harpendiug  v.  Dutch  Church,  599;    Gelpcke  v.   Dubuque,   1   Wall. 

16  Pet.  493 ;  Bell  v.  Morrison,  1  Pet  175 ;  Kountze  v.  Omaha,  5  DilL  443. 

•351 ;  D'Wolf  V.  Rabaud,  id.  479 ;  Beach  » Ennis  v.  Smith,  14  How,  400,  429 


252  JUDICIAL    NOTICE    AND    TKOOF    OF    STATUTES,  ETC. 

§  187.  They  adopt  the  local  lav/  of  real  property  as  ascer- 
tained by  the  decisions  of  the  state  courts,  whether  those 
decisions  are  grounded  on  the  interpretation  of  statutes,  or  on 
unwritten  law  which  has  become  a  fixed  rule  of  property  in 
the  state.^  The  power  of  the  state  to  regulate  the  tenure  of 
real  property  within  her  Ihnits  and  the  modes  of  its  acquisi- 
tion and  transfer,  and  the  rules  of  its  descent,  and  the  extent 
to  which  testamentary  disposition  may  be  exercised  by  its 
owners,  is  undoubted.  It  is  an  established  principle  of  law, 
everywhere  recognized,  arising  from  the  necessity  of  the  case, 
that  the  disposition  of  immovable  property,  whether  by  deed, 
descent  or  any  other  mode,  is  exclusively  subject  to  the  gov- 
ernment within  whose  jurisdiction  the  property  is  situated. 
The  power  of  the  state  in  this  respect  follows  from  her  sov- 
ereignty within  her  limits  as  to  all  matters  over  Avhich  juris- 
diction has  not  been  expressly  or  by  necessary  implication 
transferred  to  the  federal  government.  The  title  and  modes 
of  disposition  of  real  property  within  the  state,  whether  inter 
vivos  or  testamentary,  are  not  matters  placed  under  the  con- 
trol of  federal  authority.^ 

§  188.  Foreign  statutes,  how  proved. —  Though  statutes 
have  no  extraterritorial  operation,  yet,  by  comity,  foreign 
laws  are  recognized  everywhere  when  shown  for  certain  pur- 
poses ;  they  materially  affect  the  status  and  rights  of  persons 
born,  married,  divorced  or  domiciled;  of  persons  who  have 
entered  into  contracts,  or  have  suffered  wrong  in  the  country 
where  they  are  in  force,  for  various  purpose  not  necessary 
here  to  enumerate.^ 

1  Jackson  V.  Chew,  12  Wheat.  153,  ney,    11    How.    297;   Porterfield  v. 

167 ;    M'Keen  v.  Delancy's  Lessee,  5  Clark,  2  How.  76 ;  Barker  v.  Jackson, 

Cr.  32 ;   Polk's  Lessee  v.  Wendall,  9  1  Paine,  559 ;  Gormley  v.  Clark,  134 

Cr.  98 ;  Thatcher  v.  PoweU,  6  Wheat.  U.  S.  338.     See  Amy  v.   Watertowu 

119,  127;    Daly  v.   James,  8  id.   535;  (No.  1),  130  id.  301. 

Eoss  V.  M'Lmig,  6  Pet.  283,  285 ;  Green  2  United  States  v.  Fox,  94  U.  S.  315 ; 

V.  Lessee  of  Neal,  6  id.  291 ;  Hender-  McCormick  v.  SulHvant,  10  Wheat 

son  V.  Griffin,  5  id.   151 ;   IngUs  v.  202. 

Tlie  Trustees,  etc.    8   Pet  99,   127;  3  story,  Conf.  L.  g§  17-88;   Beard 

Davis  V.  Mason,  1  Pet  503 ;  Waring  v.  Basye,  7  B.  Mon.  144 ;  Whart  Conf. 

V.  Jackson,  id.  570 ;  Nichols  v.  Levy,  L.    ch.  V ;    Heirn    v.    Bridault   37 

5  Wall  433 ;  United  States  v.  Fox,  94  Miss.  209 ;  Edgerly  v.  Bush,  81  N.  Y. 

U.  S.  315 ;  Van  Rensselaer  ^•.  Kear-  199 ;  Trasher  v.  Everhart,  3  GiU  &  J- 


JUDICIAL   NOTICE    AND    TKOOF    OF    STATUTES,  ETC. 


§  189.  Foreign  laws  are  taken  into  consideration  on  the 
principles  of  international  law.  All  laws  are  foreign  to  every 
country  in  which  they  do  not  operate  of  their  own  vigor ;  they 
are  foreign  to  every  country  or  state  lying  outside  of  the  ter- 
ritorial jurisdiction  of  the  law-maker.  The  states  of  the  Amer- 
ican Union  are  foreign  to  each  other  in  their  legislation.'  The 
principles  of  international  law,  however,  apply  with  greater 
force  between  the  people  of  the  several  states  than  between 
the  subjects  of  foreign  nations.^ 

The  dismemberment  or  conquest  of  the  enacting  state  will 
not  render  the  laws  in  force  foreign  after  the  transfer  to.  a  new 
sovereign  or  jurisdiction.^ 

§  1 90.  Foreign  statutes  have  to  be  proved  as  matter  of  fact.* 
This  follows  necessarily  fi'om  the  court  not  taking  judicial 
notice  of  them,  and  from  their  having  effect  only  by  comity 
on  the  principles  of  the  common  law.^  Statutes  are  records, 
and  by  the  common  law  have  to  be  proved  as  such  by  an  ex- 
amined and  sworn  copy,  or  by  exemplification.^  The  public 
seal  of  a  state,  affixed  to  the  exemplification  of  a  law,  proves 


234 ;  Dennick  v.  Central  R.  R.  Co.  103 
U.S.  11;  Kline  v.  Baker,  99  Mass. 
253 ;  MitcheU  v.  Wells,  37  Miss.  235. 

1  Brackett  v.  Norton,  4  Conn.  517. 

2  Shaw  V.  Brown,  35  Miss.  246. 

3  Stokes  V.  Macken,  62  Barb.  145 ; 
State  V.  Patterson,  2  Irecl.  L.  346; 
PreU  V.  McDonald,  7  Kan.  426 ;  Calkin 
v.  Cocke,  14  How.  227 ;  Fremont  v. 
United  States,  17  How.  542,  557; 
Brice  v.  State,  2  Overt.  254 ;  Egnew 
V,  Cochrane,  2  Head,  329 ;  Doe  v.  Es- 
lava,  11  Ala.  1028;  Cucullu  v.  Louis- 
iana Ins.  Co.  5  Mart.  (N.  S.)  (La.)  613 ; 
United  States  v.  Turner,  11  How.  663. 

*  McKenzie  v.  AVardwell,  61  Me.  136 ; 
Khne  v.  Baker,  99  Mass.  253 ;  Brack- 
ett V.  Norton,  4  Conn.  517 ;  Dyer  v. 
Smith,  12  id.  384 ;  Lockwood  v.  Craw- 
ford, 18  id.  361 ;  Brvish  v.  Scribner,  11 
id.  407 ;  Tuten  v.  Gazan,  18  Fla.  751 ; 
Consequa  v.  Willings,  1  Pet  C.  C.  225, 
229;  Owen  v.  Boyle,  15  Me.  147; 
Charlotte  v.  Chouteau,  38  Mo.  194; 
Diez,  In  re,  50  Barb.  591 ;  Bryant  v. 


Kelton,  1  Tex.  434 ;  Hazelton  v.  Val- 
entine, 113  Mass.  472 ;  Ely  v.  James, 
123  id.  36;  Trasher  v.  Everhart,  3 
Gill  &  J.  234 ;  Bock  v.  Lauman,  24 
Pa.  St  435 ;  Ingraham  v.  Hart  H 
Oliio,  255;  Cecil  Bank  v.  Bany,  20 
Md.  287 ;  Hempliill  v.  Bank  of  Ala, 
6  S.  &  M.  44 ;  Han-is  v.  White,  81 X.  Y. 
532 ;  Holmes  v.  Broughton,  10  Wend. 
75. 

5  Bock  V.  Lauman,  24  Pa.  St  435, 
445. 

6 1  Whart  Ev.  §§  94, 95, 309 ;  Story's 
Conf.  L.  §  041 ;  Bailey  v.  IMcDoweU,  2 
Harr.  34;  Church  v.  Hubbart,  2 
Cranch,  237 ;  Stewart  v.  Swanzy,  23 
Miss.  502 ;  Warner  v.  Common wealtli, 
2  Va,  Cas.  95 ;  Owen  v.  Boyle,  15  Me. 
147 ;  Lincohi  v.  Battelle,  6  Wend.  475 ; 
Zimmerman  t.  Helser,  32  Md.  274; 
Ennis  v.  Smith,  14  How.  400,  426-429 ; 
Lacon  v.  Higgins,  3  Stark.  178 ;  Jones 
T.  Maffet  5  S.  &  R.  523 ;  Baltimore, 
etc.  R.  R.  Co.  V.  Glenn,  28  Md.  287. 


254  JUDICIAL   NOTICE   AND    PEOOF    OF    STATUTES,  ETC. 

itself.  It  is  a  matter  of  notoriety,  and  will  be  taken  notice  of 
as  part  of  the  law  of  nations  acknowledged  by  all.^ 

The  proof  should  be  made  on  the  trial ;  foreign  statutes  can- 
not be  first  produced  in  the  appellate  court.^  Foreign  laws 
which  have  been  promulgated  as  such  by  our  government,^  or 
officially  procured  pursuant  to  statute  for  judicial  reference  or 
evidentiary  purposes,*  may  be  read  in  evidence  without  other 
verification.  A  printed  volume  of  foreign  laws  proved  by 
witnesses  to  contain  the  statutes  of  a  foreign  state  or  country, 
or  to  have  received  in  the  home  country  the  sanction  of  the 
executive  and  judicial  officers  as  containing  its  laws,  is  ad- 
missible.* The  proof  of  foreign  laws  has  been  facilitated  by 
statutes  in  the  different  states  by  making  publications  purport- 
ing to  be  by  authority  self-proving.^  Congress  has  provided 
a  mode  of  proof,'  and  such  proof  is  sufficient  though  the  state 
statute  may  require  more,^  but  it  is  not  exclusive  of  other 
methods.'* 

In  Taylor  v.  Bank  of  Illinois  ^^  the  court  reached  the  conclu- 
sion in  which  the  authorities  generally  agree :  "  if  certified  ac- 
cording to  the  act  of  congress  they  7nust  be  admitted,  and  if 
certified  or  authenticated  according  to  state  provisions  they 

1  Eobinson   v.  Gilman,  20  Me.  299 ;  447 ;  Dalrymple  v.  Dalrymple,  2  Hagg. 

Lincoln    v.    Battelle,   6  Wend.  475 ;  Consist.  R.  81 ;  Jones  v.  Maffet,  5  S.  & 

Non-is  Peake  (ed.  1834  from  5th  Lon-  R.  528 ;  Brush  v.  Wilkins,  4  Jolms.  Ch. 

don   ed.    109,   110,   note) ;    Henry  v.  506 ;  People  v.  Calder,  30  Mch.  87. 

Adey,  3  East,  222 ;  U.  S.  v.  Johns,  4  « Cummins  v.  State,  12  Tex.  App. 

DalL  412,  416.  121 ;  Ellis  v.  WUey,  17  Tex.  134 ;  May 

2Mimroe  v.  Guilleaume,  3  Keyes,  v.  Jameson,  11  Ark.  368;  Dixon  v. 

30 ;  Belleville  S.  Bank  v.  Richardi,  56  Thatcher,  14  id.  141 ;  Foster  v.  Tay- 

Mich.  453.  lor,  2  Overt  190 ;  Allen  v.  Watson,  2 

3  Talbot  V.  Seeman,  1  Cranch,  38 ;  HiU  (S.  C),  319 ;  Smoot  v.  Fitzhugh, 
Flanigen  v.  Washington  Ins.  Co.  7  9  Port  73 ;  Clanton  v.  Barnes,  50  Ala. 
Pa.  St  306.  260 ;  Biddis  v.  James,  6  Binn.  321. 

4  Cox  V.  Robinson,  2  Stew.  &  Port  '  Sec.  905,  R.  S.  U.  S. 

96;    Biddis  v.  James,   6  Binn.   321;  SAnsley    v.   Meikle,   81   Ind.   260; 

Mimroe  v.  Guilleaume,  3  Keyes,  30.  UMer  v.  Semple,  20  N.  J.  Eq.  288. 

5  Owen  V.  Boyle,  15  Me.  147;  Bur-  sPoindexter  v.  Barker,  2  Hayw. 
ton  V.  Anderson,  1  Tex.  93 ;  Lacon  v.  173 ;  Tliompson  v.  Musser,  1  Ball.  403  ; 
Higgins,  3  Stark.  178 ;  Herschfeld  v.  Hanrick  v.  Andi-ews,  9  Port.  9 ; 
Dexel,  12  Ga.  582 ;  Emery  v.  Berry,  28  Smoot  v.  Fitzhugh,  9  Port  72 ;  WU- 
N.  H.  486 ;  Foster  v.  Taylor,  2  Overt  son  v.  Smith,  5  Yerg.  379. 

190 ;  Sussex  Peerage  Case,  11  CL  &  107  T.  B.  Mon.  576.  But  see  State  v. 
Fin-  85 ;  Barrows  v.  Downs,  9  R.   I.     Twitty,  2  Hawkes,  441. 


JUDICIAL   NOTICE    AND   PROOF    OF    STATU1"ES,  ETC. 


255 


may  be  admitted  without  contravening  the  laws  of  the  Union." 
The  foreign  unwritten  law,  and  the  construction  of  statutes., 
znay  be  proved  by  parol  —  by  expert  witnesses.' 

§  191.  A  decision  of  the  highest  judicial  tribunal  of  a  for- 
eign state  construing  one  of  its  statutes  is  to  be  received  else- 
where as  an  authoritative  exposition.  I^or  is  its  weight  or 
authority  affected  by  the  fact  that  it  was  made  after  the  oc- 
currence of  the  transaction  in  question,  or  after  the  departure 
from  the  state  of  the  person  affected  by  it.^ 

§  192.  Tlie  functions  of  the  court  and  jury  in  regard  to 
foreign  laws. —  Foreign  statutes,  though  to  be  proved  as  facts. 
do  not  necessarily  require  a  jury  to  determine  the  question  or 
their  existence.'    If  proved  by  a  sworn  copy,  doubtless  the 


1  Walker  v.  Forbes,  31  Ala.  9 ;  Dyer 
V.  Smith,  12  Conn.  384;  People  v. 
Calder,  30  Mich.  85 ;  People  v.  Lam- 
bert, 5  id.  349 ;  Consolidated,  etc.  Co. 
V.  Cashow,  41  Md.  59 ;  1  Whart  on 
Ev.  §§  305-308 ;  Roberts'  Will,  Mat- 
ter of,  8  Paige,  446 ;  Vander  Donckt 
V.  TheUuson,  8  C.  B.  812 ;  Merrifield 
V.  Robbins,  8  Gray,  150;  Woodstock 
V.  Hooker,  G  Conn.  35 ;  Hale  v.  N.  J. 
St  Nav.  Co.  15  id.  539;  Emery  v. 
Berry,  28  N.  H.  453 ;  Bristow  v.  Seque- 
viUe,  5  Exch.  275 ;  Kenny  v.  Clarkson, 
1  Jolm.  385;  Tyler  v.  Ti-abue,  8  B. 
Mon.  306 ;  Baltimore,  etc.  R  R  Co.  v. 
Glenn,  28  Md.  287 ;  Wilson  v.  Carson, 
12  id.  54. 

2  Bloodgood  Y.  Grasey,  31  Ala.  575 ; 
Elmendorf  v.  Taylor,  10  Wheat.  152 ; 
Shelby  v.  Guy,  11  id.  367;  McRae  v. 
jNIattoon,  13  Pick.  53 ;  Sidney  v.  White, 
12  Ala.  728 ;  Raynham  v.  Canton,  3 
Pick.  293;  Mutual  Ass.  Society  v. 
Watts,  1  Wheat  279 ;  Polk  v.  Wen- 
dal,  9  Cr.  87;  Penobscot  R  R.  v. 
Bartlett,  12  Gray,  244;  Cragin  v. 
Lamkin,  7  Allen,  395;  Blanchard  v. 
Russell,  13  JIass.  1  ;  Botanic  ]Med.  Col- 
lege V.  Atchinson,  41  Miss.  188 ;  Saul 
V.  His  Creditors,  5  Martin  (N.  S.),  569 ; 
McKeen  v.  De  Laucy,  5  Cr.  22 ;  Gard- 
ner V.  Collins,  2  Pet  85 ;  United  States 


V.  Morrison,  4  Pet  124;  Cathcart  v. 
Robinson,  5  Pet  264 ;  Green  v.  Neal, 
6  Pet  291 ;  Walker  v.  Forbes,  31  Ala  9 ; 
Davidson  v.  Sliarpe,  6  Ired.  14 ;  Inge 
V.  Mmpliy,  10  Ala.  885 ;  Peake  v.  Yel- 
deU,  17  Ala  636 ;  Hanrick  v.  Andrewsj 
9  Port  9 ;  American  P.  W.  v.  Law- 
rence, 23  N.  J.  L.  590 ;  Jolmston  v. 
Bank,  3  Sti'ob.  Eq.  263 ;  PoweU  v.  De 
Plane,  23  Tex.  66.  See  Peck  v.  Pease, 
5  McLean,  486;  Dwight  v.  Richard- 
son, 12  S.  &  M.  325 ;  Humphrey  villa 
Cop.  Co.  V.  Sterling,  1  Brun.  Col.  Cas.  3, 
3  Bock  V.  Lauman,  24  Pa  St  435. 
Lowrie,  J.,  said :  "  Are  we  excluded 
from  looking  at  the  laws  of  another 
state  where  they  have  not  been  found 
as  a  matter  of  fact?  We  think  not 
The  rule  of  international  law,  shortly 
expressed  in  the  maxim  locus  regit 
actum,  is  a  part  of  our  law,  and  it 
requires  us  to  go  abroad  for  tlie  law 
by  which  the  efficacy  of  tliis  contract 
is  to  be  tested.  That  rule  acquii-ed  an 
increase  of  sanction  by  the  union  of 
tlie  states ;  it  is  mvolved  in  the  con- 
stitutional declaration  that  "  fuU  faith 
and  credit  shall  be  given  in  each  state 
to  the  public  acts,  records  and  judicial 
proceedings  of  eveiy  other  state;" 
it  receives  at  least  a  partial  expression 
in  the  judiciaiy  act  of  1789,  section 


250 


JUDICIAL    XOTICE    A:s'D    PEOOF    OF    STATUTES,  ETC. 


evidence  would  go  to  a  jury.'  But  if  proved  by  an  exemplifi- 
cc^tion,  or  by  reading  from  a  book  published  by  authority,  the 
court  would  decide  not  only  the  admissibility  but  the  effect  of 
the  proof.-  The  home  construction  of  a  foreign  statute  is 
provable  by  parol,  and  if  so  proved  as  a  fact,  is  to  be  found  by 
a  jury."  The  pubhshed  official  reports  of  decisions  showing 
such  home  construction  are  held  to  be  admissible  evidence.* 
When  the  evidence  admitted  consists  entirely  of  a  statute  or 
judicial  opinions,  the  question  of  construction  and  effect  is  for 
the  court  alone.'^  If  a  foreign  statute  be  proved,  but  no  evi- 
dence given  of  any  peculiar  home  construction,  the  court  will 
construe  it  by  the  settled  rules  of  construction,  or  as  similar 
statutes  of  the  state  where  the  court  sits  are  construed.^ 


34,  declaring  that  the  laws  of  the 
several  states  should  be  taken  as  rules 
of  decision  in  the  United  States  courts 
in  cases  where  they  apjil^  ;  and  many 
clauses  of  the  constitution  cannot 
have  their  full  effect  as  laws  unless 
we  take  judicial  notice  of  the  insti- 
tutions of  sister  states. 

"  It  is  commonly  said  that  foreign 
law  is  matter  of  fact,  and  so  generally 
it  is,  but  not  necessarily  to  be  found 
by  the  jury.  If  a  state  law  comes  to 
us  certified  under  the  seal  of  the  state, 
it  comes  to  us  as  a  fact  in  the  first 
instance ;  but  then  we  need  no  jury 
to  establish  its  existence  and  its  char- 
acter. There  may  very  often  be  cases 
in  which  a  jury  is  necessary  for  this 
purpose,  but  our  knowledge  is  not 
necessarily  dependent  on  their  ver- 
dict." See  Barkman  v.  Hopkins,  6 
Eng.  (Ark.)  157. 

lid. 

2 Id;  Willardv.  Conduit,  10  Tex. 
213. 

3KUne  V.  Baker,  99  Mass.  253 ;  Hol- 
man  v.  King,  7  Met  384;  Dyer  v. 
Smith,  12  Conn.  384 ;  Moore  v.  Gwynn, 
5  Ired-  187;  Ingraham  v.  Hart,  11 
Ohio,  255 ;  Baltimore,  etc.  R.  R.  Co.  v. 
Glenn,  28  Md.  323 ;  ConsoUdated,  etc. 
Co.  V.  Cashow,  41  id.  60 ;  Wilson  v. 


Carson,  12  id.  54 ;  Bristow  v.  Seque- 
ville,  5  Ex.  275  and  note ;  Penobscot, 
etc.  R.  R.  Co.  V.  Bartlett,  12  Gray,  244 
Ames  V.  McCamber,  124  Mass.  85 
Craigin    v.    Lamkin,  7  Allen,    395 
De  Sobry  v.  De  Laistre,  2  Har.  &  J. 
191,  229.   See  Gardner  v.  Levpis,  7  GiU, 
377. 

*  Charlotte  v.  Chouteau,  33  Mo.  194 ; 
Kingsley  v.  Kingsley,  20  HL  203; 
Kline  T.  Baker,  99  Mass.  253 ;  Andi-ewa 
V.  Hoxie,  5  Tex.  171;  McDeed  v. 
McDeed,  67  IlL  548.  Contra,  Gardner 
V.  Lewis,  7  Gill,  377. 

5Klme    V.  Baker,    99    Mass.    253 
Ely  V.   James,   123  id.   36;  Hale  v 
New  J.  St.  Nav.  Co.  15  Conn.   539 
Lockwood  V.  Crawford,  18  Conn.  361 
Charlotte  v.  Chouteau,   33  Mo.  194 
Cecil  Bank  v.  Barry,  20  Md.  287 ;  Peo- 
ple V.  Lambert,  5  Midi.  349 ;   Inge  v. 
Mm-phy,  10  Ala,  885,  897 ;   SidweU  v. 
Evans,  1  Pen.  &  W.  383,  388 ;  De  Sobry 
V.  De  Laistre,  2  Har.  &  J.  191 ;  Ennis 
V.   Smith,   14  How.  400;    Church  v. 
Hubbart,  2  Cranch,  187;  Di  Sora  v. 
Phillips,  10  H.  L.  Cas.  624;    Bremer 
V.    Freeman,   10  Moore,   P.   C.  300; 
Owen  V.  Boyle,  15  Me.  147 ;  Warnick 
V.  Grosholz,  3  Grant's  Cases,  234. 

6  Smith  V.  Bartram,  11  Ohio  St. 
690. 


JUDICIAL   NOTICE    AND    PROOF    OF    STATUTES,  ETC. 


257 


§  193.  Private  statutes. —  A  general  or  public  statute  is  a 
universal  rule  that  regards  the  whole  community ;  is  of  public 
concern ;  the  courts  take  judicial  notice  of  it.  On  the  other 
hand,  private  statutes  operate  only  on  particular  persons  and 
private  concerns;  the  courts  do  not  take  notice  of  them  with- 
out proof;  when  relied  on  they  have  to  be  pleaded  and  proved.' 
Acts  may  be  local  and  special,  immediately  designed  to  affect 
only  a  part  of  the  territory  or  people  under  the  jurisdiction  of 
the  law-making  power,  and  temporary  in  duration,  and  yet  be 
public  because  being  intended  for  a  public  object.-  Thus,  acts 
for  the  establishment  of  a  local  government,  a  village  or  city, 
being  for  public  purposes ;  *  or  fixing  or  amending  the  bound- 
aries of  a  city  or  county ; ''  establishing  or  changing  the  county 
seat;^  to  organize  corporations  for  canals,  railroads  or  turn- 
pikes, when  they  contain  provisions  affecting  the  general 
public;®  or  authorizing  particular  municipalities  to  contribute 
aid  for  such  enterprises," — are,  in  this  country,  public  acts. 
Here  the  tendency  has  been  to  enlarge  the  limits  of  pubhc 
statutes,  and  to  bring  within  them  all  enactments  of  a  general 
character,  or  which  in  any  way  affect  the  community  at  large.^ 


11  Black.  Cora.  86;  People  v. 
Wright,  70  IlL  388;  State  v.  Cham- 
bers, 93  N.  C.  600;  Meshte  v.  Van 
Doren,  16  Wis.  319. 

■i  Unity  V.  Barrage,  103  U.  S.  447 ; 
Allen  V.  Hii-sch,  8  Oregon,  413 ;  Bui-n- 
ham  V.  Acton,  35  How,  Pr.  48;  1 
Kent's  Com.  459 ;  City  of  Covington 
V.  Voskotter,  80  Ky.  219. 

3  People   V.  Wright,  70    111.    388 
Clark    V.    Janesville,    10    Wis.   136 
Mason   v.    IMiilliohi,    6    Dana,    140 
Pierce  v.  Kimball,  9  Me.  54,  56 ;  Hal- 
bert  V.  Skyles,  1  A.  K.  Marsh.  369 ;  Van 
Swartow  v.  Commonwealth,  24   Pa. 
St  131 ;  Burnliam  t.  Webster,  5  Mass. 
266 ;  Ellis  v.  Commissioners,  2  Gray, 
378;  Burhop  v.  Milwaukee,  21  Wis. 
257.  See  King  v.  Burridge,  3  P.  AVms. 
496;  Gorham  v,  Springfield,  21  Me. 
58 ;  PreU  v.  McDonald,  7  Kan.  420. 

*  Commonwealth  v.  Springfield,  7 
Mass.  12 ;  Stephenson  v.  Doe,  8  Blackf . 
17 


508 ;  New  Portland  v.  New  Vineyard, 
16  Me.  69 ;  West  v.  Blake,  4  Blackf. 
234;  State  v.  Jackson,  39  Me.  291; 
Ross  V.  Reddick,  2  111.  73. 

5  State  ex  rel.  v.  Lean,  9  Wis.  279. 

•>  Jenkins  v.  Union  Turnpike  Co.  1 
Cai  Cases,  86 ;  Proprietors  of  Frj-e- 
burg  Canal  v.  Frye,  5  Me.  38 ;  Att'y- 
General  v,  Erie,  etc.  R.  R.  Co.  55  ]Mich. 
21. 

"  Unity  V.  Burrage,  103  U.  S.  447. 
See  Clark  v.  JanesviUe,  10  Wis.  136. 

8  Unity  T.  Burrage,  103  U.  S.  447 ; 
Boyle,  In  re,  9  Wis.  264 ;  Yellow  R. 
Improv't  Co.  V.  Ai-nold,  46  Wis.  214 ; 
State  V.  Chambers,  93  N,  C.  600 ;  Price 
V.  White,  27  Mo.  275 ;  Bretz  v.  Mayor, 
etc.  6  Rob.  325 ;  McLain  v.  Mayor, 
etc.  3  Daly,  32;  West  v.  Blake,  4 
Blackf.  234;  Bevens  v.  Baxter,  23 
Ark.  387;  State  v.  Judges,  21  Ohio 
St.  1 ;  Kerrigan  v.  Force,  9  Hun,  185 ; 
Wright  T.  Hawkins,  28  Tex.  452, 


258      JUDICIAL  NOTICE  A^^D  PKOOF  OF  STATUTES)  ETC. 

An  act  authorizing  a  named  person  to  construct  a  dam  of  a 
particular  description  for  the  purpose  of  improving  the  nav- 
igation of  a  river  is  a  public  statute.^  Acts  for  the  incorpora- 
tion of  banks  have  been  held  public  by  reason  of  provisions 
affecting  the  general  public,-  and  other  corporations.^  A  penal 
act  is  public ;  *  and  the  defining  of  an  offense  in  an  act  other- 
wise private  renders  it  a  public  act."  An  act  authorizing  a 
foreign  private  corporation  to  do  business,  and  providing  that 
it  shall  have  an  officef  and  place  of  business  in  the  state  where 
the  law  is  passed,  and  that  such  corporation  may  then  sue  and 
be  sued  like  a  domestic  corporation,  is  a  public  act.®  The 
distinction  betvreen  public  and  private  acts  defined  in  the 
common  law  of  England  by  Blackstone  is  not  quite  the  dis- 
tinction recognized  in  this  country.  Here  acts  may  be  public 
though  they  are  local  and  special,  when  they  concern  the 
public  generally,  though  more  particularly  a  local  community 
or  only  a  class  of  the  general  public — where  they  concern  the 
class  in  distinction  from  the  individual.^  Where  a  statute  of 
a  private  nature  is  declared  to  be  a  public  act,  it  wUl  be 
treated  as  such  and  need  not  be  pleaded  nor  proved.^  A  stat- 
ute amendatory  of  a  public  law  is  public.^ 

§  194.  A  private  statute  is  one  confined  to  a  special  case.^** 
An  act  "  to  enable  the  Bishop  of  Canton  to  make  a  lease  to 
A.  B."  for  an  exceptional  period  is  a  fair  example  of  a  private 
statute.^^    A  statute  enabhng  the  local  authorities  of  a  particu- 

1  Calking  v.  Baldwin,  4  Wend.  667.        6  paU  Brook  Coal  Co.  v.  Lynch,  47 

2  Smith    V.    Strong,    2    Hill,    241 ;     How.  Pr.  520. 

Louisiana  State  Bank  v.    Flood,    3  "Commonwealth   v.  Worcester,  3 

Mart.  (N.  S.)  341 ;  Bank  of  Common-  Pick.  473 ;  Wales  v.  Belcher,  id.  508 ; 

wealth    V.    Spilman,    3    Dana,   150 ;  Bisk  W.  L.  §  42c;  Wheeler  v.  Phila- 

Yoimg  V.  Bank  of  Alexandria,  4  Cr.  delphia,  77  Pa.  St.  338. 

384 ;  Bank  of  Utica  v.  Smedes,  3  Cow.  s  Brookville  Ins.  Co.  v.  Eecords,  5 

684 ;  Bank  of  Newberry  v.  Railroad  Blackf.  170 ;  Beaty  v.  Knowler,  4  Pet 

Co.  9  Rich.  495.  152 ;    Covington  Drawbridge  Co.  v. 

3  Portsmouth  Livery  Co.  v.  Watson,  Shepherd,  20  How.  232 ;  Bacon's  Abr. 
10  Mass.  91,  Statute,  F.    See  Edenbm-gh  R.  R.  v. 

4Burnhamv.Acton,35How.  Pr.48.  Wauchope,  8  CI.  &  F.  710;  Rogers' 

5  Bacon's    Abr.    tit    Statutes,    F. ;  Case,  2  GreenK.  303. 

Heridia    v.    Ayers,     12    Pick.     344;  9  Unity  v.  Burrage,  103U.  S.  447; 

Burnham  v.  Webster,  5  Mass.   266 ;  State  v,  Welch,  21  Minn.  22. 

Young  v.  Bank  of  Alexandria,  4  Cr.  '0  Whart  Com.  on  Am.  Law,  §§  13, 

384;   Rogers'  Case,  2   Greenlf.   303;  598. 

Eex  V.  Buggs,  Skin.  428.  n  i  Black.  Com.  86. 


JUDICIAL    NOTICE    AND    I'KOOF    OF    STATUTES,  ETC. 


259 


lar  city  or  county  to  raise  money  by  tax  for  the  payment  of 
certain  claims  against  it,^  or  relieving  a  particular  married 
woman  by  name  of  the  disabilities  of  coverture;^  acts  au- 
thorizing the  sale  of  property  of  minors  and  other  persons 
under  disability,^  are  private.  Acts  for  the  mere  creation  of  a 
private  corporation  are  of  this  character.  * 

The  recital  of  facts  in  a  private  statute  is  strong  evidence 
against  those  who  obtained  the  act,'  but  is  not  evidence 
against  strangers,^  nor  are  such  statutes  binding  on  strangers." 
They  may  be  avoided  for  fraud.^    An  act  may  be  in  part 


iBretz  V.  ]Mayor,  etc.  3  Abb.  Pr. 
(N.  S.)  478.  See  Sherman  Co.  v.  Si- 
mons, 109  U.  S.  735. 

2  Asliford  V.  Watkins,  70  Ala  156. 

3  Rice  V.  Parkman,  16  Mass.  326; 
Moore  v.  Maxwell.  18  Ark.  469 ;  Stan- 
ley V.  Colt,  5  Wall  119 ;  McComb  v. 
Gilkey,  29  Miss.  146;  Wilkinson  v. 
Leland,  2  Pet.  657 ;  Lessee  of  Dulany 
V.  Tilghman,  6  Gill  &  J.  461 ;  Croxall 
V.  Shererd,  5  Wall.  268 ;  Jackson  v. 
Catlin,  2  Jolm.  248;  Munford  v. 
Pearce.  70  Ala.  452 ;  CarroU  v.  Lessee 
of  Olmsted,  16  Oliio,  251 ;  Stewart 
V.  Griffith,  33  Mo.  13 ;  Estep  v.  Hutch- 
man,  14  S.  &  R.  435;  Davison  v. 
Johonnot,  7  Met.  388 ;  Boon  v.  Bowers, 
30  Miss.  246 ;  WiUiamson  v.  Suydam, 
6  Wall  723 ;  Lobrano  v.  NeUigan,  9 
id.  295 ;  Brevoort  v.  Grace,  53  N.  Y. 
245 ;  Leggett  v.  Himter,  19  id.  445 
Tliarp  V.  Fleming,  1  Houston,  580 
Periy  v.  Newsom,  1  Ired.  Eq.  28 
Todd  V.  Floumoy's  Heirs,  56  Ala.  99 
Pickett  V.  Pipkm,  64  id.  520 ;  Tindal 
V.  Drake,  60  id.  170.  See  Watson  v. 
Gates,  58  Ala.  647 ;  Heirs  of  Hohnan 
V.  Bank  of  Norfolk,  12  Ala,  369. 

*  Burhop  V.  Milwaukee,  21  Wis.  257 ; 
Perry  v.  New  Orleans  R.  R.  Co.  55  Ala. 
413 ;  Conley  v.  Columbus,  etc.  R.  R  Co. 
44  Tex.  579 ;  IMontgomery  v.  Plank  R. 
Co.  31  Ala.  76 ;  Drake  v.  FleweUen, 
33  id.  106;  Clarion  Bank  v.  G ruber, 
87  Pa.  St  468 ;  Timlow  v.  Raihoad  Co. 
99  id.  284 ;  Perdicaxis  v.  Bridge  Co. 


29  N.  J.  L.  367 ;  Butler  v.  Robinson, 
75  Mo.  192 ;  Mandere  v.  Bonsignore, 
28  La.  Ann.  415 ;  Carrow  v.  Bridge 
Co.  PhilL  L.  (N.  C.)  118. 

5  May's  Heirs  v.  Frazee,  4  Litt  392 ; 
Elmendorff  v.  Carmachael,  3  id.  472 ; 
Powers  V.  Bergen,  6  N.  Y.  358 ;  Camp- 
beU's  Case,  2  Bland's  Ch-  209. 

6  Id. 

■?  Earl  of  Shrewsbury  v.  Scott,  6  C. 
B.  (N.  S.)  1,  157,  184;  Crittenden  v. 
Wilson,  2  Cow.  165 ;  2  Kent's  Com, 
466;  Jackson  v.  Catlin,  2  John.  248; 
S.  C.  8  id.  520 ;  McKInnon  v.  Bliss,  21 
N.  Y.  206;  Lucy  v.  Levington,  1 
Vent.  175 ;  Jones  v.  Tatham,  20  Pa. 
St.  398. 

8  CampbeU's  Case,  2  Bland's  Ch.  209 ; 
Penn  v.  Baltunore,  1  Ves.  Sr.  454; 
Partridge  v.  Dorsey,  3  Har.  &  J.  307, 
note;  Commonwealth  v.  Breed,  4 
Pick.  460.  Bland,  Chan. ,  in  Campbell's 
Case,  said :  "  A  private  act  of  parlia- 
ment, although  sti'ictly  and  literally 
followed,  as  regards  the  authority 
and  jurisdiction  conferred  (Ex  parte 
Kmg,  2  Bro.  C.  C.  158 ;  Ex  parte  Bolton 
School,  2  Bro.  C.  C.  662  2;  Madd- 
Chan.  719),  is  in  many  respects  con- 
sidered and  construed  as  a  mere 
legal  conveyance;  in  general  bind- 
ing only  on  those  who  are  parties  to 
it ;  that  is,  those  who  petition  for  it 
or  are  named  in  the  act  itself  and 
those  claiming  under  tliem.  The  Case 
of    the    Chancellor    of    Oxford,  10 


260 


JUDICIAL   NOTICE   AXD    PROOF    OF    STATUTES,  ETC. 


public  and  in  part  private.^  The  courts  do  not  take  judicial 
notice  of  private  statutes.^  They  have  to  be  proved  in  the 
usual  manner.'  But  in  England  by  virtue  of  a  statute,  and  in 
some  of  the  states  of  the  Union,  all  acts  are  public,  and  the 
courts  take  notice  of  them.*  And  under  the  prevalent  consti- 
tutional prohibition  of  special  and  local  legislation,  the  distinc- 
tion between  pubhc  and  private  acts  has  lost  much  of  its  im- 
portance. 


Coke,  57 ;  Hasketh  v.  Lee,  2  Saimd. 
84;  Boulton  v.  Bull,  2  H.  Bl.  499; 
Perchard  v.  Hejwood,  8  T.  R  472 ; 
WaUwyn  v.  Lee,  9  Ves.  25 ;  Biillock  v, 
Fladgate,  1  Ves.  &  Bea  471 ;  Vaux- 
hall  Bridge  Co.  v.  Earl  Spencer,  2 
Mad  356;  S.  C.  4  Cond.  Ch.  28; 
Edwards  v.  Grand  Jimction  E.  E.  Co. 
10  id.  85;  Moore  v.  Usher,  id.  107;  2 
Black.  Com.  344 ;  Cru.  Dig.  tit  33.  It 
is  never  permitted  to  affect  strangers 


or  to  defeat  the  rights  of  bona  fide 
purchasers  for  a  valuable  considera- 
tion ;  because,  as  to  strangers,  a  pri- 
vate act  is  considered  only  in  the 
Ught  of  a  private  conveyance.  Pom- 
fret  V.  Windsor,  2  Ves.  480." 

1  Dwarris  on  St  354  ;  People  v.  Su- 
pervisors, 43  N.  Y.  10. 

2 1  Black.  Com.  86. 

3  Leland  v.  Wilkinson,  6  Pet  317. 

i  13  and  14  Vic.  c.  21. 


PART  SECOND. 

STATUTORY  CONSTRUCTION. 


CHAPTER  XI. 

CLASSIFICATION  AND  DESCRIPTION  OF  STATUTES. 


195.  The  names  applied  to  statutes. 

196.  Ancient  statutes  of  England. 

197.  Federal,  state,  territorial  and 

colonial  statutes. 

198.  Public  and  private  statutes. 
200.  Declaratoiy  statutes. 

202.  Affirmative  and  negative  stat- 
utes. 


§  205.  Preceptive,    prohibitive     and 
permissive  statutes. 
20G.  Prospective    and    retroactive 
statutes. 

207.  Remedial  statutes. 

208.  Penal  statutes. 


§  195.  The  names  of  statutes. —  In  the  preceding  pages  we 
have  discussed  the  general  nature,  enactment,  duration  and 
proof  of  statutes  and  cognate  topics.  'We  have  now  to  discuss 
the  principles  by  which  is  determined  their  meaning  and  effect. 
These  principles  are  adapted  to  the  ]3eculiar  nature  of  the 
statute ;  therefore,  a  chapter  explaining  the  different  kinds  of 
statutes,  with  the  names  by  which  they  are  designated,  will 
naturally  precede  the  exposition  of  the  principles  which  di- 
versify and  make  up  the  law  of  hermeneutics.  Some  of  these 
statutes  have  already  been  defined,  but  it  will  be  useful  to 
present  them  with  others  in  one  comprehensive  view.  They 
bear  names  significant  of  their  origin,  form  or  intrinsic  nature. 
Many  by  name  and  operation  are  in  dual  contrast  or  contra- 
distinction. English  statutes,  in  part  entering  into  our  juris- 
prudence and  in  part  foreign,  are  distinguished  as  ancient  and 
modern.  In  our  system  we  have  federal,  state,  colonial  and 
territorial  statutes.  A  generical  classification  of  all  statutes  is 
as  public  or  private.  The  former  are  divided  into  species  of 
general  and  local  or  sj)ecial  statutes.  General  statutes  are  fur- 
ther divided  bv  other  distinctions.    In  respect  to  duration  they 


262  CLASSIFICATION   AND   DESCRIPTION    OF    STATUTES. 

are  temporary  or  jperjpetual;  in  respect  toJ^heir  force  witli  ref- 
erence to  the  date  of  taking  effect, pro82:)€ctive  or  retroactive' 
as  to  the  nature  of  their  operation,  declaratory^  permissive,  pro- 
hihitive, preceptive,  remedial,  directory,  mandatory,  or  repealing 
statutes;  as  to  form,  affirmative  or  negative.  Another  large 
and  important  class  of  public  statutes  is  designated  as  penal. 

%  196.  Ancient  statutes  of  England. —  The  statutes  termed 
ancient  are  those  adopted  in  Latin  and  French  prior  to  the 
reign  of  Edward  III.,  which  commenced  in  1327.^  Since  that 
time  they  are  contradistinguished  as  nova  statuta,  and  since 
the  accession  of  Eichard  III.,  1483,  the  statutes  have  been  first 
printed  in  English,  and  entirely  so  since  the  time  of  Henry  YIL^ 
Until  late  in  the  reign  of  Edward  III.,  oral  proceedings  in  the 
courts  were  conducted  in  the  French  language,  "a  tongue 
much  unknown  in  the  realm,"  and  the  pleadings  and  record  in 
Latin.  In  the  thirty-sixth  year  of  his  reign  the  proceedings 
were  required  to  be  conducted  in  English,  and  by  the  same 
statute  the  pleadings  and  record  continued  in  Latin. 

Formerly  the  judges  formulated  the  statutes  from  the  peti- 
tion of  the  commons  and  the  king's  answer.'  AU  those  passed 
at  one  session  of  parliament  were  strung  together,  making  so 
many  capitula  or  chapters  of  one  statute ;  to  which  was  usually 
prefixed  a  memorandum  of  the  time  and  place  of  the  meeting 
of  parliament,  and  the  occasion  for  calling  it.^  On  account  of 
the  generality  or  brevity  of  ancient  statutes,  a  very  liberal  and 
latitudinary  construction  was  practiced  and  held  to  be  justifi- 
able,^ not  admitted  of  new  or  modern  statutes.^  Hence,  there 
is  a  wide  distinction  between  the  construction  of  ancient  and 
modern  statutes.  This  consideration  should  detract  from  the 
force  of  rules  of  interpretation  which  originated  in  reasons 
peculiar  to  the  administration  of  ancient  statutes,  and  originat- 

1  Dwarris,  2d  ed.  460.  <  Dwarris,  460. 

2  Id.  5  2  Inst.  401 ;  Gwynne  v.  BumeU,  6 
» ]\Iills  V.  Wilkins,  6  Mod.  62 ;  Att'y-    Bing.  N.  C.  561 ;  Wilson  v.  Knubley, 

Gen'l  V.  Weymouth,  1  Amb.  22 ,  Rex  7  East,  128 ;  McWiUiam  v.  Adams,  1 
V.  Williams,  1  W.  BL  93 ;  Morant  v.  Macq.  H.  L.  Cas.  120 ;  Montrose  Peer- 
Taylor,  1  Ex.  D.  194 ;  Shrewsbury  v.  age,  id.  401. 

Scott,   6  C.  B.  (N.   S.)  1;  Jeffreys  v.  6  Miller    v.    Salomons,  7    Ex.   475; 

Boo3ey.4H.L.982;  Chance  v.  Adams,  Bradley  t.  Clark,  5  T.  R  201 ;  Brad- 

1   Lord  Raym.  77 ;  Hadden  v.  Col-  ford  v.  Treasurer,  Peck,  425 ;  Jones 

lector,  5  Wall.  110 ;  Bac.  Abr.  Court  v.  Kearns,  Mart  &  Y.  241 ;  Waller  v. 

of  Parliament,  E.  Harris,  20  Wend.  555.  561. 


CLASSIFICATION    AND   DESCRIPTION    OF    STATUTES.  tM'6 

ing  in  the  forms  of  legislation  then  in  vogue  and  now  obsolete, 
or  displaced  by  others  radically  different.  These  ancient  stat- 
utes are  a  part  of  our  common  law.' 

§  197.  Federal,  state,  territorial  and  colonial  statiites.- 
The  valid  acts  of  congress  are  those  which  it  enacts  in  the 
exercise  of  the  delegated  powers  enumerated  in  the  federal 
constitution.^  They  have  force  and  are  binding  throughout 
the  Union  and  the  federal  domain,  or  in  such  lesser  part  of 
it  as  the  act  professes  to  operate  in.  On  such  subjects  the  fed- 
eral laws  are  supreme  —  they  are  domestic ;  all  courts  take 
notice  of  them.^  Treaties  are  also  a  part  of  the  law.*  The 
federal  courts  are  organized  for  the  enforcement  of  those  laws ; 
they  reach  in  theii*  operation  the  entire  nation,  and  they  are 
binding  on  the  states  and  all  their  departments.  The  states 
have  supreme  power  within  then*  limits  for  local  government, 
except  as  this  power  is  restrained  by  the  concession  of  the 
federal  powers  in  the  constitution  of  the  United  States.  "With 
this  hmitation,  for  the  purpose  of  local  government,  the  states 
are  supreme  and  independent.^  The  law-making  powers  of 
state  legislatures  are  plenary,  subject  only  to  the  restrictions 
of  the  federal  and  state  constitutions.  Colonial  statutes  are 
those  in  force  in  the  colonies  prior  to  their  becoming  states. 
Those  laws  which  were  suited  to  their  new  condition,  poht- 
ically  and  otherwise,  continued  to  form  part  of  the  jurispru- 
dence of  the  succeeding  states  until  altered  by  later  statutes.* 
Territorial  statutes  are  those  enacted  by  territorial  legisla- 
tures, pursuant  to  the  authority  of  an  act  of  congress.^ 

§  198.  Public  and  private  statutes. —  Blackstone  defines  a 
public  act  as  a  universal  rule  that  regards  the  whole  commu- 

J  Ante,  §  15.  v.  Schooner  Peggy,  1  Cr.  103 ;  Fos- 

2McCulloch  V.  Maryland,  4  Wheat  ter  v.  Neilson,  2  Pet.  253. 

316;  United  States  v.   Fisher,  2  Cr.  s  Carpenter    v.    Pennsylvania,    17 

358 ;  Calder  v.  Bull,  3  Dall.  386 ;  Bris-  How.  456 ;  Pi-igg  v.  Pennsylvania,  16 

coev.  Bank  of  Kentucky,  11  Pet  257;  Pet  539;  New  York  v.  3Iiln,  11  id. 

Oilman  v.  Philadelpliia,  3  Wall  713 ;  102 ;  Strader  v.  Graham,  10  How.  82 ; 

Padelf  ord  v.  Mayor,  etc.  14  Ga  438.  Sears  v.  CottreU,  5  Mich.  251 ;  Tiu-ner 

3  Ex  parte  Siebold,  100  U.  S.  371 ;  v.  Board  of  Commissioners,  27  Kaa. 

•Cook  V.  Moffat  5  How.  295 ;  United  639. 

States    V.    Rathbone,   2  Fame,  578;  ^  Ante,  %  19. 

Dodge  V.  Woolsey,  18  How.  341.  '  National  Bank  v.   Yankton   Ca 

<  Const  art  VI,  2;  United  States  101  U.  S.  129;  ante,  §  23;  2  Story  on 

Const  §  1325. 


2G4  CLASSIFICATION    AND    DESCRIPTIOX    OF    STATUTES. 

nit  J,  of  which  the  courts  are  bound  to  take  judicial  notice ; 
private  acts  are  those  which  concern  only  a  particular  species, 
thing  or  person,  and  of  these  the  courts  are  not  bound  to  take 
notice ;  they  must  be  pleaded.^  Dwarris  thus  defines  these 
statutes  in  contradistinction :  "  Public  acts  relate  to  the  public 
at  large,  and  private  acts  concern  the  particular  interest  or 
benefit  of  certain  individuals  or  particular  classes  of  men."  A 
public  act  need  not  be  a  universal  rule,  in  the  sense  that  it 
must  purport  to  apply  to  the  whole  territory  or  the  entire 
people  subject  to  the  legislative  jurisdiction.  It  may  be  appli- 
cable to  only  the  smallest  political  division,  or  to  a  small  class 
of  the  people,  and  still  be  a  public  statute.  If  it  concern  the 
public,  and  not  merely  a  private  interest,  it  is  a  public  statute, 
though  local  or  special.^  A  public  statute  affects  the  pubhc 
at  larffe,  either  throuo^hout  the  entire  state  or  within  the 
limits  of  a  particular  locality  where  the  act  operates ;  and  a 
private  statute  relates  to  or  affects  a  particular  person,  by 
name,  or  so  that  certain  individuals  or  classes  of  persons  are 
interested  in  a  manner  peculiar  to  themselves,  and  not  in  com- 
mon with  the  entire  community.*  The  distinction  by  the 
English  common  law  is  not  very  plainly  marked.  The  Ameri- 
can cases,  however,  show  a  manifest  divergence,  by  enlarging 
the  class  of  public  statutes.^  In  a  pubhc  act  there  may  be  a 
private  clause.^  So,  in  a  private  act,  there  may  be  a  provision 
of  a  pubhc  nature ;  ^  and  thus  a  statute  may  be  public  in  one 
part  and  private  in  another.  A  pubhc  statute  is  local  when 
it  relates  to  a  particular  place  or  locality,  or  does  not  extend 
to  aU  places  which  would  classify  with  that  to  which  the  act 
is  confined.^    It  is  special  not  only  when  it  is  local,  but  also 

1 1  Black.  Com.  86 ;  Prigge  v.  Ad-  103  U.  S.  447 ;  Stephens  Co.  v.  R  R. 

ams,  Skin.  350.  Co.  33  N.  J.  L.  229 ;  State  v.  Bergen, 

2  Ante,  %  203 ;  Clark  v.  Janesville,  34  N.  J.  L.  438 ;  Winooski  v.  Gokey, 
10  Wis.  138 ;  State  v.  Baltimore,  29  49  Vt.  283. 

Md.  516 ;  Wheeler  v.  Philadelphia,  77  5  Potter's  Dwarris,  53. 

Pa.  St  338 ;  Brooks  v.  Hyde,  37  CaL  6  Rex  v.   Bugg,    Skin.  428 ;  Allen- 

366 ;  Cox  v.  State,  8  Tex.  App.  254,  town  v.  Hower,  93  Pa.  St  332,  336 ; 

287.  Peoi^le  v.  Supervisors  of  Chautauqua 

3  State  V.  Chambers,  93  N.  C.  600 ;  Co.  43  N.  Y.  10 ;  Bretz  v.  New  York, 
People  V.  Wright,  70  III  388 ;  Monta-  4  Abb.  Pr.  (N.  S.)  258 ;  IMcLain  v.  New 
gue  V.  State,  54  Md.  481 ;  State  v.  York,  3  Daly,  32 ;  Heridia  v.  Ayres, 
Helmes,  3  N.  J.  L.  *1050.  12  Pick.  334. 

<  Ante,  §  203 ;  Unity  v.  Burrage,        '  People  v.  Harper,  91  HL  357 ;  State 


CLASSIFICATION   AXD    DESCRIPTION   OF    STATUTES.  205 

when  it  is  confined  in  its  subject  to  less  than  a  class  of  persons 
or  things.^  These  distinctions  have  been  treated  more  at  large 
in  another  place,  to  which  the  reader  is  referred.- 

§  199.  Public  and  private  statutes  are  construed  upon  dif- 
ferent considerations.  In  a  late  case  Lord  Esher,  M.  K.,  said : 
"  In  the  case  of  a  public  act,  you  construe  it  keeping  in  view 
the  fact  that  it  must  be  taken  to  have  been  passed  for  the  pub- 
lic advantage,  and  you  apply  certain  fixed  canons  to  its  con- 
struction. In  the  case  of  a  private  act  which  is  obtained  by 
persons  for  their  own  benefit,  you  construe  more  strictly  pro- 
visions which  they  allege  to  be  in  their  favor,  because  the  per- 
sons who  obtain  a  private  act  ought  to  take  care  that  it  is  so 
worded  that  that  which  they  desire  to  obtain  is  plainly  stated 
in  it;  but  when  the  construction  is  perfectly  clear,  there  is  no 
difference  between  the  modes  of  construing  a  private  act  and 
a  public  act."  ^  However  difficult  the  construction  of  a  private 
act  may  he,  when  once  the  court  has  arrived  at  the  true  con- 
struction, after  having  subjected  it  to  the  strictest  criticism, 
the  consequences  are  precisely  the  same  as  in  the  case  of  a 
public  act.* 

§  200.  Declaratory  statutes. —  A  declaratory  act  was  orig- 
inally one  declaratory  of  the  common  law ;  such  statutes  were 
made,  says  Mr.  Dwarris,  when  an  old  custom  of  the  kingdom  is 
almost  fallen  into  disuse,  or  become  disputable,  in  which  case 
the  parliament  thinks  proper,  in  jperjpetuam  rei  testimonium, 
and  for  avoiding  all  doubts  and  difficulties,  to  declare  what  the 
common  law  is  and  ever  hath  been.^    Such  statutes  are  to  be 

V,  Judges,  21  Ohio  St  1 ;   People  v.  343 ;  People  v.  Davis,  61  Barb.  456 

HUls,   35  N.  Y.  449,  451 ;  Gaskia  v.  Bretz    v.  New    York,  6  Robt  325 

Jleek,  42  id.  188 ;  People  t.  O'Brien,  Meshke  v.  Van  Doren,  16  Wis.  319 

38  id.  193,  195 ;  Kerrigan  v.  Force,  68  Price  v.  White,  27  Mo.  275. 

ill  381 ;  Fire  Department  of  Troy  v.  1  Ante,  %  193.    See  Wheeler  v.  Phila- 

Bacon,  2  Abb.  App.  127 ;  People  v.  delpliia,  77  Pa.  St.  338. 

Allen,  ILans.  248;    Healey  v.  Dud-  2^4>i^e,  §  193. 

ley,  5  Lans.  115;  Burn  ham  v.  Acton,  ^Altrhicham    Union    v.    Chesliire 

4  Abb.  Pr.  (N.  S.)  1 ;  Levy  v.  Stat<?,  6  Lmes  Committee,  L.  R.  15  Q.  B.  Div. 

Ind.  281 ;  Pierce  v.  Kunba'u,  9  Greeulf.  597,  603. 

54 ;  Bevens  v.  Baxter,  23  Ark.   387 ;  •*  Id. ;  Perry  v.  Newsom,  1  Ired.  Eq. 

West    V.    Blake,  4  Blackf.  234;   Re  28;  Bartlett  v.  Morris,  9  Port  266; 

Wakker,  1  Edm.  Sel.  Cas.  575 ;  Mc-  Union  Pac.  R.  R.  Co.  v.  United  States, 

Lam  V.  New  York,  3  Daly,   32.    See  10  Ct.  of  CI.  559  (affirmed  91  U.  S.  72). 

Yellow   R.  Imp.   Co.    v.  Arnold.  46  5  Dwar.  on  St.  475,  477.    See  Moog 

Wis.  214,  222 ;   Orr  v.  Rhme,  45  Tex.  v.  Randolpli,  77  Ala.  597. 


266  CLASSIFICATION   AND   DESCRIPTION   OF    STATUTES. 

construed,  if  possible,  according  to  the  common  law,^  They  are 
expressed  affirmatively  or  in  negative  terms.  A  statute  made 
in  the  affirmative,  without  any  negative  expressed  or  imphed, 
does  not  take  away  the  common  law.  It  follows  that  it  does 
not  affect  any  prescriptions  or  custom. s  clashing  with  it  which 
were  before  allowed;  in  other  words,  the  common  law  con- 
tinues to  be  construed  as  it  was  before  the  recognition  by  par- 
liament.^ A  statute  declaratory  of  the  common  law  should 
not  retroact  upon  past  controversies,  or  reverse  decisions 
which  the  courts  in  the  exercise  of  their  undoubted  authority 
have  made.  This  would  be  the  exercise  of  judicial  power, 
which,  if  tolerated,  might  constitute  the  legislature  a  court  of 
review  in  all  cases  where  disappointed  partisans  could  obtain 
a  hearing  after  being  dissatisfied  with  the  rulings  of  the  court,^ 
§  201.  A  declaratory  statute  is  sometimes  intended  to  de- 
clare the  meaning  of  an  existing  statute.  Such  statutes  are 
akin  to  interpretation  clauses, —  they  are  futile  and  inoper- 
ative in  legislation  w^hen  designed  to  affect  rights  retrospect- 
ively ;  but  will  operate  prospectively.^  A  declaration  in  an  act 
of  the  legislature  as  to  what  they  intended  in  a  preceding  act 
does  not  make  the  law  retrospectively  what  is  so  declared  to 
be  intended,  if  the  previous  act  will  not  bear  that  interpreta- 
tion ;  though  such  declared  intention  will  be  effective  in  the 
future.^  Such  statutes  will  be  construed,  if  possible,  as  in- 
tended only  to  lay  down  a  rule  for  future  cases.® 

1  People  V.  Butler,  16  John.  203;  ough,  11  Pa.  St  489;  Reiser  v.  Tell 
Hewey  v.  Novu-se,  54  Me.  256 ;  Free-  Association,  39  id.  137 ;  Kupfert  v. 
man  v.  People,  4  Denio,  9,  20 ;  Baker  Building  Asso.  30  Pa.  St.  465 ;  Lin- 
V.  Baker,  13  CaL  87 ;  Commonwealth  coin,  etc.  Asso.  v.  Graham,  7  Neb.  173 ; 
V.  Humphi-ies,  7  Mass.  242.  Moser  v.  White,  29  Mich.  59 ;  People 

2  Dwar.  on  St. ;  2  Inst.  200.  v.  Supervisors,  16  N.  Y.  424 ;  Ogden 

3  Cooley,  Const  Lim.  94 ;  Salters  v.  v.  Blackledge,  2  Cranch,  272 ;  Dash  v. 
Tobias,  3  Paige,  338 ;  People  v.  Su-  Van  Kleeck,  7  John.  477 ;  Young  v. 
pervisors,  16  N.  Y.  424.  A  mandate  Beardsley,  11  Paige,  93;  Asliley,  Ap- 
of  the  legislature  to  the  judiciary,  di-  pellaut  4  Pick.  23.  See  Reis  v.  Graff, 
recting  what  constiiiction  shall  be  51  CaL  86. 

placed  on  existing  statutes,  is  an  as-  5  Bassett  v.  United  States,  2  Ct  of 

smnption  of  judicial  power,  and  im-  CL  448. 

constitutional.    Governor  v.  Porter,  5  6  Todd  v.  Clapp,  118  Mass.  495 ;  Shal- 

Humph.  165.  low  v.  Salem,  136  id.  136 ;  McNichol 

*  Postmaster-General    v.   Early,  12  v.  United  States,  etc.  Agency,  74  Mo. 

Wheat  148 ;    Governor  v.  Porter,  5  457 ;  Bernier  v.  Becker,  37  Ohio  St 

Himaph.  165;    Greenough  v.  Green-  72:    Linn  v.  Scott  3  Tex.  67;  Citi- 


CLASSIFICATION   AND    DESCRIPTION   OF   STATUTES.  2G7 

§  202.  Affirmative  and  negative  statutes. —  An  affirmative 
statute  is  one  which  is  enacted  in  affirmative  terms.  A  nega- 
tive statute  is  one  expressed  in  negative  terms.  These  statutes 
have  very  different  effects ;  the  former  is  generally  cumulative, 
the  other  displaces  existing  rules.  An  affirmative  statute  does 
not  take  away  the  common  law  in  relation  to  the  same  mat- 
ter.^ An  affii^mative  provision  without  any  negative  expressed 
or  implied  makes  no  alteration  in  any  common-law  rule  in 
regard  to  the  same  subject-matter.  A  statute  authorizing  a 
tenant  in  fee  to  lease  for  twenty-one  years  did  not  affect  his 
common-law  right  to  lease  for  a  longer  period.-  An  act  au- 
thorizing a  particular  court  to  try  a  certain  offense  does  not 
conflict  with  an  earlier  act  gi^^ng  power  to  another  to  try  the 
same  offense.*  So  a  statute  imposing  a  liability  on  certain 
persons  to  repair  a  road  was  held  not  inconsistent  with,  the 
common-law  duty  of  the  parish  to  make  such  repairs,  and 
therefore  did  not  unpliedly  exonerate  the  parish.^  "Where  an 
affirmative  statute  provides  a  new  remedy  for  an  existing 
right  not  inconsistent  with  the  common-law  remedy,  the  latter 
is  not  abolished ;  the  new  remedy  is  cumulative,  and  the  party 
possessing  the  right  may  pursue  either  at  his  election.'^    The 

zens'  Gas  Light  Co.  v.  Alden,  44  N.  J.  Square,  3  Camp.  222.    See  Gibson  v. 

L.  648;  Lambertson  v.  Hogan,  2  Pa.  Preston,  L.  R  5  Q.  B.  219. 
St  22 ;  Journeay  v.  Gibson,  56  id.  57,        5  CasweU  v.  Worth,  5  E.  &  B.  849; 

61 ;  James  v.  Eowland,  52  ]\Id.  462 ;  Waldo  v.  BeU,  13  La.  Ann.  329 ;  Rau- 

Les  Bois  t.  Bramell,  4  How.  449 ;  Bas-  debaugh  v.  Shelley,  6  Ohio  St.  307 ; 

eett  V.  United  States,  2  Ct  of  CL  448.  O'Flahertj-  v.  McDowell,  6  H.  L.  Cas. 

iCo.  Litt.  115a;  Jackson  v,  Bradt,  142;    Livingston   t.    Van   Ingen,    9 

2  Caines,  169 ;  Bruce  t.  Schuyler,  9  Jolm.  507 ;   Crittenden  v.  Wilson,  5 

HL  221 ;  Attorney-General  v.  Brown,  Cowen,  165 ;  Stafford  t.  Ingersol,   3 

1  Wis.  513 ;  Mullen  t.  People,  31  IlL  Hill,   38 ;   Heath,   Ex  parte,   id.   42 ; 

444;  Nixon  V.  Piffet,  16  La.  Ann.  379;  Kelly  v.  Union  Township,  5  Watts 

State  V.  Macon  Co.  Ct  41  Mo.  453 ;  &  S.  536 ;  Renwick  t.  Morris,  3  Hill, 

Planters'  Bank  v.  State,  6  Sm.  &  ]\L  621 ;  Bai'den  v.  Crocker,  10  Pick.  383 ; 

628 ;  AVliite  v,  Johnson,  23  Miss.  68 :  Mitchell  v.  Dimcan,  7  Fla.  13 ;  State 

DePauw  V.  New  Albany,  22  Ind.  204 :  v.   Berry,   12  Iowa,  58;    Wilson    v. 

Blain  v.  Bailey,  25  id.  165 ;  McLaugh-  Shorick,  21  id.  332 ;  Coxe  v.  Bobbins, 

lin  V.  Hoover,  1  Oregon,  31 ;   Brown  4  Halst  384 ;  ilaj-or,  etc.  v.  Howard,  6 

V.  MiUer,  4  J.  J.  Marsh.  474 ;  Lillard  Har.  &  J.  383 ;  Bearcamp  River  Co.  v. 

V.  McGee,  4  Bibb,  165 ;  South's  Herra  Woodman,  2  Greeulf.  404 ;  Booker  v. 

V.  Hoy,  3  Bibb,  522.  McRoberts,  1  Call,  243 ;  Almy  v.  Har- 

2  Dwar.  on  St  475.  ris,  5  John.  175 ;  Farmers'  Turnpike  v 

3  Co.  Litt  115a.  Coventi-y,  10  id.  35^9 ;  Fiyeburg  Canal 
*Rex    v.    St    George's    Hanover  v.  Frye,  5  GrecnL  38;  Wetmore  v. 


268  CLASSIFICATION    AND    DESCRIPTION    OF    STATUTES. 

same  rule  applies  as  between  successive  statutory  remedies  or 
successive  statutes  creating  rights,  and  against  implied  repeal.^ 
An  affirmative  statute  giving  a  new  right  does  not  of  itself 
and  necessarily  destroy  a  previously  existing  right,  created  by 
another  statute  to  which  it  does  not  refer,  but  will  do  so  if  it 
appears  to  have  been  the  intention  of  the  legislature  that  the 
two  rights  should  not  exist  together.^  Although  a  statute 
provides  that  a  certain  thing  shall  prove  a  certain  fact,  this 
does  not  render  other  proof  incompetent  unless  it  is  explicitly 
so  provided.''  The  absence  from  the  code  of  a  principle  which 
has  been  part  of  the  jurisprudence  does  not  impair  its  author- 
ity.' 

§  203.  A  negative  statute  is  one  expressed  in  negative  terms. 
And  here  the  rule  prevails  that  if  a  subsequent  statute,  con- 
trary to  a  former,  has  negative  words,  it  shall  be  a  repeal  of 
the  former ;  and  a  negative  statute,  it  is  said  too,  so  binds  the 
common  law  that  a  man  cannot  afterwards  have  recourse  to 
the  latter.*  Of  this  form  and  nature  is  this  provision  gener- 
ally found  in  the  statute  of  limitations :  "  No  acknowledgment 
or  promise  is  sufficient  evidence  of  a  new  or  continuing  con- 
tract, by  which  to  take  the  case  out  of  the  operation  of  this 
statute,  unless  the  same  is  contained  in  some  writing  signed  by 
the  party  to  be  charged  thereby."  ]^egative  words  make  a 
statute  imperative.^ 

§  201.  An  affirmative  statute  may  imply  a  negative.  If  a 
new  power  be  given  by  an  affirmative  statute  to  a  certain 
person  by  a  particular  designation,  although  it  be  an  affirma- 
tive statute,  still  all  other  persons  are  in  general  excluded  fi'om 
the  exercise  of  the  power,  since  expressio  miius  est  exdusio  aU 

Tracy,  14  Wend.  250 ;  United  States  ^  Martin  v.  Jennings,  10  La.  Ann- 

V.  WjTigall,  5  Hill,  16 ;  Constantine  553. 

V.  Van  Winkle,  6  id.  177 ;  Leland  v.  5  2  inst.  388. 

Tousey,  id.  328.  ^  Bladen  v.  Philadelphia,  60  Pa  St. 

1  Gohen  v.  R  R  Co.  2  Woods,  346 ;  464 ;  State  v.  Smith,  67  Me.  328 ;  Hur- 
Cont.  Election  of  Barber,  In  re,  86  ford  v.  Omaha,  4  Neb.  336 ;  People  v. 
Pa,  St.  392.  Allen,  6  ^^^eud.  486 ;  Livei-pool  Bor- 

2  0Tlaherty  v.  McDowell,  6  H.  L.  ough  Bank  t.  Turner,  2  De  G.  F.  & 
Cas.  142 ;  Steward  v.  Greaves,  10  ]\1.  J.  502 ;  Rex  v.  Newcomb,  4  T.  R  368 ; 
&  W.  713.  Howard  v.  Bodiugton,  L.  R  2  P.  Div. 

3  Bethlehem  v.  Watertown,  51  203,  211 ;  WilUams  v.  Swansea  Canal 
Conn.  490.  Nav.  Co.  L.  R  3  Ex.  158. 


CLASSIFICATION   AND   DESCRIPTION    OF    STATUTES. 


2G9 


terms.  Thus,  if  an  action  founded  upon  a  statute  be  directed 
to  be  brought  before  the  justices  of  Glamorgan  in  sessions,  it 
cannot  be  brought  before  any  other  person  or  in  any  other 
place.^  If  a  thing  is  hmited  to  be  done  in  a  particular  form  or 
manner  it  excludes  every  other  mode,  and  affirmative  expres- 
sions introducing  a  new  rule  imply  a  negative.-  Affirmative 
words  which  are  imperative,  and  therefore  mandatory,  imply 
a  negative  of  anything  contrary  or  alternative  to  the  direc- 
tion so  given.'  "Where  an  act  requires  that  a  juror  shall  have 
twenty  pounds  a  year,  and  a  later  act  that  he  shall  have  twenty 
marks,  the  latter  implies  an  abrogation  of  the  former,  other- 
wise it  would  have  no  effect.*  There  is  an  implied  negative  in 
statutes  which  are  intended  to  prescribe  the  only  rule  to  be 
observed ;  they  repeal  all  acts  which  provide  a  different  rule.^ 
Where  a  statute  creates  a  right,  and  also  provides  the  remedy, 
the  latter  is  exclusive ;  it  implies  a  negation  of  any  other.^    So 


1  Sedgw.  Const  St.  &  Const  L.  30. 

2  District  To^v^lslnp,  etc.  v.  Du- 
buque, 7  Iowa,  262 ;  Smith  v.  Stevens, 
10  Wall.  321 ;  Uncas  National  Bank 
T.   Rith,   23  Wis.  339;    New  Haven 

\  Whitney,  36  Conn.  373 ;  Wallace 
V.  Holmes,  9  Blatchf.  65 ;  Burgoyne  v. 
Supervisors,  5  CaL  22;  Watkins  v. 
Wassell,  20  Ark.  410;  Perkins  v. 
Thornburgh,  10  Cal.  189. 

3  Davison  v.  Gill,  1  East,  64 ;  Biyan 
V.  Sundberg,  5  Tex.  418. 

*Rex  V.  Worcestershire,  5  ]M.  &  S. 
457 ;  Curtis  v.  Gill,  34  Conn.  49 ;  Gor- 
ham  V.  Luckett  6  B.  Mon.  146;  1 
Black.  Com.  89. 

3  People  V.  Burt  43  Cal.  561 ;  Daviess 
V.  Fairbairn,  3  How.  636 ;  Industrial 
School  Dist  V,  Wliitehead,  13  N.  J.  Eq. 
290 ;  Roche  v.  Mayor,  etc.  40  N.  J.  L. 
257 ;  Swann  v.  Buck,  40  Miss.  268 ; 
Riggs  V.  Brewer,  64  Ala.  282 ;  Daw  v. 
Metropohtan  Board,  12  C.  B.  (N.  S.) 
161 ;  Re  Sprmg  Sti-eet,  112  Pa.  St  258 ; 
Re  AUey  in  Kutztown,  2  Woodw. 
Dec,  (Pa.)  373 ;  Sacramento  v.  Bird, 
15  CaL  294 ;  State  v.  Conkhng,  19  id. 
501. 

6  Lang    V.   Scott,    1    Blackf.    405; 


Smith  V.  Lockwood,  13  Barb.  209; 
Ahny  v.  Harris,  5  Jolm.  175 ;  DutUey 
V.  Mayhew,  3  Comst  9 ;  Thm'ston  v. 
Prentiss,  1  Mich.  193 ;  State  v.  Cor- 
win,  4  Mo.  609 ;  Bailey  v.  Bryan,  3 
Jones  (N.  C),  357 ;  Ham  v.  Steam- 
boat Hamburg,  2  Iowa,  460;  Con- 
weU  V.  Hagerstown  Canal,  2  Ind.  588 ; 
Victoiy  V.  Fitzpati-ick,  8  Ind.  281 ; 
McCormack  v.  Terre  Haute,  etc.  R.  R 
9  id.  283 ;  Camden  v.  AUen,  2  Dutch. 
398 ;  West  v.  Downman,  L.  R  14  Ch. 
Div.  Ill ;  CoUey  v.  London,  etc.  Co. 
L.  R.  5  Ex.  Div.  277 ;  Brain  v.  Thomas, 
50  L.  J.  Q.  B.  Div.  663 ;  Bonham  v.  Bd, 
of  Education,  4  DiU.  156.  There  are 
tliree  classes  of  cases  in  which  stat- 
utes deal  with  liabihties :  1.  AMiere  a 
habihty  existed  at  common  law,  and 
was  only  re-enacted  by  the  statute 
with  a  special  form  of  remedy;  in 
such  cases  tlie  jjlaintiff  has  liis  elec- 
tion imless  the  statute  contains  words 
necessarily  excluding  the  common- 
law  remedy.  2.  WTiere  a  statute  has 
created  a  liabihtj'^  but  given  no  rem- 
edy, there  a  party  may  adopt  an  action 
of  debt  or  other  remedy  at  common 
law  to  enforce  it    Wood  v.  Bank,  9 


270  CLASSIFICATION   AND   DESCKIPTION   OF    STATUTES. 

where  the  same  statute  creates  an  offense,  prescribes  the  pen- 
alty and  mode  of  procedure,  only  what  the  statute  thus  or- 
dains is  permissible.^ 
§  205.  Preceptive,  prohibitiye  and  permissiye  statutes. — 

When  a  statute  commands  certain  actions,  and  regulates  the 
forms  and  acts  which  ought  to  accompany  them,  it  is  called  a 
jyreceptwe  statute.^  A  jpi^ohihitivc  statute  is  one  that  forbids 
all  actions  which  disturb  the  public  repose,  and  injury  to  the 
rights  of  others,  or  crimes  and  misdemeanors,  or  when  it  for- 
bids certain  acts  in  relation  to  the  transmission  of  estates  or 
the  capacity  of  persons  or  other  objects.'  A  ^permissive  stat- 
ute is  one  which  allows  certain  actions  or  things  to  be  done 
without  commanding  them ;  as,  for  example,  when  it  allows 
persons  of  a  certain  description,  or,  indeed,  any  person,  to  make 
a  will,*  to  pre-empt  lands,  to  vote,  or  to  form  corporations. 
Of  this  nature  is  a  statute  which  permits  a  candidate  at  an 
election  at  the  polling  place  or  canvass,  or  that  a  clergyman 
accused  of  an  ecclesiastical  offense  may  attend  the  proceed- 
ings of  the  commission  appointed  to  inquire  into  the  accusa- 
tion.* Such  statutes  confer  a  privilege  or  license  which  the 
donee  may  exercise  or  not  at  pleasure,  having  only  his  own 
convenience  or  interest  to  consult.^ 

§  206.  Prospective  and  retrospective  statutes. —  A  ;pr(h 
sjyective  statute  is  one  which  regulates  the  futm-e."  It  oper- 
ates upon  acts  done  and  transactions  occurring  after  it  takes 
effect. 

A  retrospective  statute,  on  the  other  hand,  operates  upon  a 
subject  already  existing  or  an  act  done.  Certain  statutes  of 
this  nature  are  unjust,  and,  says  Chancellor  Kent,  "  are  very 

Cow.  194 ;  Cole  v.  Thayer,  8  Cow.  249 ;  Stradling  v.  Morgan,  1  Plowd,   206 ; 

Gallatian  v.  Cunningham,  8  Cow.  364 ;  Slade  v.  Drake,   Hobart,  295 ;  Bish. 

Judson  V.  Leach,  7  Cow.  152.   3.  When  W.  L.  §  250. 

the  statute  creates  a  liability  not  exist-  ^  1  Bouv.  Inst.  48. 

ing  at  common  law  and  gives  a  par-  3  \  Bouv.  Inst.  48. 

ticular  remedy ;  here  the  party  must  *  Potter's  Dwar.  74. 

adopt  the  form  of  remedy  given  by  5  Endl.  on  St  Int.  §  310. 

the  statute.    Vallance  v.  Falle,  L.  R.  « Id.    See  NichoU  v.  Allen,  1 B.  &  S. 

13  Q.  B.  Div.  109 ;  Bailey  v.  Bailey,  934 ;  Brockbank  v.  Wliitehaven  R 

L.  R,   13  Q.  B.  Div.  859 ;  O'Flaherty  Co.  7  H.  &  N.  834 ;  Rockwell  v.  Clark, 

v.  McDoweU,  6  H.  L.  Cas.  142 ;  Stew-  44  Conn.  534 

ard  V.  Greaves,  10  K  &  W.  711.  7  Bouv.  Inst  49. 
1  Bashaw  v.  State,  1  Yerg.  177, 185 ; 


CLASSIFICATION   AJN'D   DESCKIPTION   OF    STATUTES. 


271 


generally  considered  as  founded  on  unconstitutional  principles, 
and  consequently  inoperative  and  void."  '  Of  this  obnoxious 
character  are  those  affecting  and  changing  vested  rights ;  -  one 
which  takes  away  or  impairs  any  vested  right  under  existing 
laws,  or  creates  a  new  obligation,  or  imposes  a  new  duty,  or 
attaches  a  new  disability  in  respect  to  transactions  or  consid- 
erations ah-eady  past.^  This  restriction,  as  ah'eady  shown,  is 
applicable  to  interpretation  and  declaratory  laws.* 

Ex  post  facto  laws,  and  those  iiu})uiring  the  obligation  of 
contracts,  are  expressly  forbidden  by  the  federal  and  by  state 
constitutions.  The  constitutions  of  some  states  expressly  pro- 
hibit retrospective  laws  generally.'  To  avoid  injustice  and 
unconstitutionality,  it  is  always  laid  down  as  a  rule  of  con- 
struction that  a  statute  is  to  be  taken  or  construed  as  pro- 
spective, unless  its  language  is  inconsistent  with  that  interpre- 
tation.^ 


1 1  Kent's  Com.  455. 

2 Id;  Ogden  v.  Blackledge,  2  Cr. 
272;  Brunswick  v.  Litchfield,  2 
GreenL  28 ;  Osborne  v.  Huger,  1  Bay, 
179 ;  Bedford  v.  ShiUing.  4  S.  &  R. 
401 ;  Eakin  v.  Raub,  12  id.  363 ;  Soci- 
ety for  Propagating  the  Gospel  v. 
New  Haven,  8  ^Tieat.  493 ;  Wilkin- 
son V.  Leland,  2  Pet.  657. 

3  Society  v.  Wheeler,  2  GaU.  105 
Men-ill  v.  Sherburne,  1  N.  H.  199 
Lewis  V,  Brackenridge,  1  Blackf .  220 
Boyce  v.  Holmes,  2  Ala.  54 ;  Jones  v. 
Wootten,  1  Harr.  (Del.)  77 ;  WilUani- 
son  V.  Field,  2  Sandf.  Ch.  533 ;  Forsyth 
V.  Marbury,  R.  M.  Charlt.  333 ;  Dash 
V.  Van  Kleeck,  7  Jolin.  477 ;  People  v. 
Piatt,  17  id.  195 ;  Houston  v.  Boyle, 
10  Ired.  496 ;  Cook  v.  Mutual  Ins.  Co. 
53  Ala.  37 ;  Dubois  v.  McLean,  4  Mc- 
Lean, 486 ;  State  v.  Doherty,  60  Me, 
504 ;  Union  Iron  Co.  v.  Pierce,  4  Biss. 
327;  Hoagland  v.  Sacramento,  52 
CaL  142;  Gunn  v.  Barry,  15  Wall 
610;  Ahl  V.  Rhoads,  84  Pa,  St  319; 
Hart  V.  State,  40  Ala.  32 ;  Lambert- 
son  V.  Hogan,  2  Pa.  St.  22;  Doug- 
lass V.  Pike,  101  U.  S.  677 ;  Strong  v. 
Dennis,  13  Ind.  514;  Logan  v.  Wal- 


ton, 12  id.  639 ;  Strong  v.  Qem,  id. 
37;  Dequindre  v.  Williams,  31  ii 
444;  Finn  v.  Haynes,  37  I\Iich.  63; 
Jordan  v.  Wimer,  45  Iowa,  65. 

'^Ante,  §  200:  2  Kent's  Com.  23, 
24;  McManning  v.  Farrar,  46  Mo. 
376. 

5  Rich  V.  Flandei-s,  39  N.  H.  304 ; 
De  Cordova  v.  Galveston,  4  Tex. 
470 ;  Goshom  v.  Purcell,  11  Ohio  St 
641. 

6 1  Kent's  Com.  455,  note ;  Bartruff 
V.  Remey,  15  Iowa,  257 ;  McEwen  v. 
Den,  24  How.  242;  Quackenbush  v. 
Danks,  1  Denio,  128 ;  S.  C.  3  Denio, 
594 ;  Van  Fleet  v.  Van  Fleet,  49  Mch. 
610 ;  1  N.  Y.  129 ;  Atkinson  v.  Dun- 
lap,  50  ]\Ie.  Ill ;  North  Bridge  water 
Bank  v.  Copeland,  7  Allen,  139 ;  Har- 
vey V.  Tyler,  2  AVall.  328,  347 ;  Rich- 
ardson V.  Cook,  37  Vt  599 ;  Plumb  v. 
Sawyer,  21  Conn.  351 ;  Taylor  v.  Kee- 
ler,  30  Conn.  324 ;  Torrey  v.  CorUss, 
33  Me.  333 ;  Hopkins  v.  Jones,  22  Ind. 
310 ;  Seamans  v.  Carter,  15  Wis.  548 ; 
Boston,  etc.  R  R.  Co.  v.  Cilley,  44 
N.  H.  578 ;  Hannum  v.  Bank  of  Ten- 
nessee, 1  Cold.  398 ;  Saimders  v.  Car- 
roll, 12  La.  Ann.  793 ;  State  v.  Brad- 


272 


CLASSIFICATION   AND   DESCKIPTION   OF    STATUTES. 


All  retrospective  statutes,  however,  are  not  unjust  or  un- 
constitutional. A  large  class  of  remedial  and  curative  stat- 
utes have  been  enacted  "with  beneficent  effect.  They  are 
liberally  construed  to  carry  out  the  intention  of  the  legisla- 
ture, in  view  of  the  intrinsic  merit  of  the  particular  case  and 
on  a  broad,  fostering  consideration  of  the  general  interest.^ 
Statutes  relating  to  remedies  and  forms  of  procedure  gener- 
ally apply  to  rights  abeady  accrued,  to  cases  ripe  for  action, 
and  actions  pending;-  but  subject  to  the  princijile  that  the 


ford,  36  Ga,  422 ;  Whitman  v.  Hap- 
good,    10    Mass.    437;    Somerset   v. 
Dighton,  12  id.  383 ;  Gardner  v.  Lucas, 
L.  R.  3  App.  Cas.  582,  600-603 ;  Moon  v. 
Dm-den,  2  Ex.  22 ;  Regiua  v.  Ipswich 
Union,  2  Q.  B.  Div.  269 ;  Suche,  In  re, 
1  Ch.  Div.  48,  50 ;  Martin  v.  State,  22 
Tex.  214 ;  Reis  v.  Graff,  51   Cal.  86 ; 
People  V.   O'Neil,  id.   91 ;    People  v. 
Kinsman,  id.  92 ;  People  v.  McCain, 
id.  360 ;  Matter  of  Prot.  Epis.  School, 
58  Barb.  161 ;  Brown  v.  Wilcox,  14 
Sm.  &  M.  127  ;  Bond  v.  Munro,  28  Ga. 
597 ;  Hopkins  v.  Jones,  22  Ind.  310 ; 
Aurora,  etc.  Tvirnpike  v.  Holthouse,  7 
id.  59;  Frank    v.  San  Francisco,  21 
Cal.  668 ;  Thorne  v.  Same,  4  id.  127 ; 
State  V.  Atwood,   11  Wis.  422;  Ed- 
monds V.  Lawley,  6  M.  &  W.  285; 
Abington  v.  Duxbury,  105  Mass.  287 ; 
Reynolds  v.  State,  1  Ga.  222 ;  Briggs 
T.  Hubbard.    19  Vt.   86 ;  Amsbry  t. 
Hinds,  48  N.  Y.  57 ;   Head  v.  Ward, 
1  J.  J.  Marsh.  280 ;  Regina  v.  MaUow 
Union,  12  Ir.  C.  L.  (N.  S.)  35 ;  People 
V.   Peacock,  98  lU.  172 ;   Medford  v. 
Learned,   16    Mass.   215;    Young    v. 
Hughes.  4   H.    &    N.   76;   Williams 
V.   Smith,  4  H.  &  N.   559 ;  Jarvas  v. 
Jarvis,  3  Edw.   Ch.  462;    Finney  v. 
Ackerman,   21  Wis.  268;  Dewart  v. 
Pm-dy,  29  Pa.  St.  113 ;  Taylor  v.  Mitch- 
ell, 57  Pa.  St.  209 ;   State  v.  Auditor, 
41  Mo.  25 ;  Van  Rensselaer  v.  Livings- 
ton, 12  WencL  490 ;  Ely  v.  Holton.  15 
N.  Y.  595 ;  Western  Union  Railroad 
V.  Fulton,  64  111  271 ;  Gerry  v.  Stone- 


ham,  1  Allen,  319 ;  State  v.  Scudder, 
32  N.  J.  L.  203 ;  Bay  v.  Gage,  36  Barb. 
447 ;  United  States  v.  Starr,  Hempst 
469 ;  Hepburn  v.  Griswold,  8  WaU. 
603 ;  WiUiams  v.  Johnson,  Adm'x,  30 
Md.  500 ;  Parsons  v.  Paine,  26  Ai'k. 
124. 

1  Sturgis  v.  Hull,  48  Vt  302 ;  State 
V.  Smith,  38  Conn-  397;  Ballard  v. 
W^ard,  89  Pa.  St.  358;  Austin  v. 
Stevens,  24  Mo.  520 ;  Baldwin  v.  New- 
ark, 38  N.  J.  L.  158 ;  Cook  v.  Sexton, 
79  N.  C.  305 ;  State  v.  Wilmmgton, 
etc.  R.  R.  Co.  74  id.  143;  State  v. 
Wolfarth,  42  Conn.  155 ;  Bronson  v. 
Newberrj',  2  Doug.  (Mich.)  38 ;  Reed 
v.  Rawson,  3  Litt.  189;  MiUer  v. 
Moore,  1  E.  D.  Smith,  739 ;  AVilder  v. 
Lumpkin,  4  Ga,  208 ;  Periy  v.  Com- 
monwealth, 3  Gratt.  632;  Smith  v. 
Kibbee,  9  Oliio  St.  563;  Bensley  v. 
ElUs,  39  CaL  309;  Miller  v.  Miller, 
16  Mass.  59;  Annable  v.  Patch,  3 
Pick.  360;  Johnson  v.  Johnson,  26 
Ind.  441 ;  Regma  v.  Vme,  L.  R  10 
Q.  B.  195;  Miller  v.  Graham,  17 
Oliio  St.  1 ;  Riggins  v.  State,  4  Kan. 
173 ;  Tilton  v.  Swift,  40  Iowa,  78. 

-  Sampeyreac  v.  United  States,  7 
Pet.  222 ;  Blair  v.  Cary,  9  Wis.  543 ; 
Henschall  v.  Sclmaidt,  50  Mo.  454; 
Rivers  v.  Cole,  38  Iowa,  677 ;  Hoa  v. 
Lefranc,  18  La.  Ann.  393 ;  Mercer  v. 
State,  17  Ga.  146 ;  Donner  v.  Pahner, 
23  CaL  40;  Walston  v.  Common- 
Avealth,  16  B.  Mon.  15;  Burch  v. 
Newbmry,   10  N.  Y.  374;   Morse  v. 


CLASSIFICATION    AND    DESCltlPTIOX    OF    STATUTES.  273 

right  is  not  tlicrel^y  destroyed  or  seriously  impaired.'  The 
legislature  is  not  restrained  from  all  legislation  which  may 
prejudicially  affect  private  interests  not  protected  by  the  con- 
stitution.- In  a  later  chapter  this  subject  will  be  treated  more 
at  length.' 

§207.  Remedial  statutes. —  Ecmedial  statutes  are  such  as 
the  name  implies,  embracing  a  great  variety  in  detail ;  those 
enacted  to  afford  a  remedy,  or  to  improve  and  facilitate  reme- 
dies existing  for  the  enforcement  of  rights  and  the  redress  of 


Goolcl,  11  icL  281 ;  Van  Rensselaer  v. 
Snyder,  13  id.  299 ;  Jacquins  v.  Com- 
monwealth, 9  Ciisli.  279 ;  McNamara 
V.  Minn.  Cent  R'y  Co.  12  Minn.  388 ; 
Brock  V.  Parker,  5  Ind.  538 ;  Indian- 
apolis V.  Imberry,  17  id.  175;  Com- 
monwealth V.  Bradley,  16  Gray,  241 ; 
Van  Rensselaer  v.  BaU,  19  N.  Y.  100 ; 
Horner  v.  Lyman,  2  Abb.  App.  Dec. 
399. 

I  Kimbray  v.  Di-ajjer,  L.  R.  3  Q.  B. 
160 ;  Wright  v.  Hale,  6  H.  &  N.  227 ; 
Mann  v.  McAtee,  37  Cal.  11 ;  State  v. 
Smith,  38  Conn.  397 ;  Doolubdass  v. 
RamloU,  7  Moore,  P.  C.  239;  Brad- 
ford V,  Barclay,  42  Ala.  375;  Reid 
V.  State,  20  Ga  681 ;  Templeton  v. 
Home,  82  111.  491 ;  United  States  v. 
Gilmore,  8  WaU.  330 ;  Mabry  v.  Bax- 
ter, 11  Heisk.  682;  Rutherford  v. 
Greene,  2  "Wheat  196 ;  Green  v.  Bid- 
die,  8  id.  92 ;  Cambridge  v.  Boston, 
130  ]\Iass.  357 ;  Berley  v.  Rampacher, 
5  Duer,  183 ;  Kelsey  v.  KendaU,  48 
Vt  24;  Dequindre  v.  Williams,  31 
Ind.  444 ;  State  v.  Berry,  25  Mo.  355 
Union  Iron  Co.  v.  Pierce,  4  Biss.  327 
Governor  v.  Porter,  5  Hamph.  165 
People  V.  Supervisors,  16  N.  Y.  424 
Sunco  V,  State,  8  Tex.  App.  406 
Haley  v.  Philadelphia,  68  Pa,  St 
45 ;  Edwards  v.  AVilMamson,  70  Ala, 
145 ;  Merwin  v.  Ballard.  66  N.  C.  398 ; 
Nelson  v.  McCraiy,  60  Ala.  310 ;  Lee 
V.  Cook,  1  Wyom.  Ter.  413 ;  Bronson 
v.  Kinzie,  1  How.  811 ;  McCracken 
V.  Hayward,  2  id.  608;  Ewing's 
18 


Case,  5  Gratt  701 ;  Von  HoflFman  v. 
Qumcy,  4  Wall.  552 ;  White  v.  Hart 
13  id.  646 ;  Walker  v.  Whitehead,  16 
id.  314 ;  PoUard,  Ex  parte,  40  Ala.  77. 
See  Chaney  v.  State,  31  Ala.  342; 
Steamboat  Farmer  v.  McCraw,  id. 
659;  Uwclilan  Townsliip  Road,  30 
Pa.  St  156. 

2  See  Charles  River  Bridge  v.  War- 
ren Bridge,  11  Pet  539;  Common- 
wealth V.  Logan,  12  Gray,  136 ;  Har- 
ris V.  Glenn,  56  Ga.  94;  Regina  v. 
Vine,  L.  R.  10  Q.  B.  195 ;  State  v.  Scud- 
der,  32  N.  J.  L.  203;  Wilder  v.  Me. 
Cent  R.  65  Me.  332 ;  Bank  of  Toledo 
V.  Bond,  1  Oliio  St  622 ;  Gorman  v. 
Pacific  R.  R.  26  IMo.  441 ;  Barton  v. 
Morris,  15  Ohio,  408 ;  Hagersto^vn  v. 
Sehner,  37  Md.  180;  Sedgwick  v. 
Bunker,  16  Kan.  498 ;  Tilton  v.  Swift 
40  Iowa,  78 ;  Hess  v.  Johnson,  3  W. 
Va,  645 ;  Stokes  v.  Rodman,  5  R.  I. 
405 ;  Stiue  v.  Bennett,  13  Mmn.  153 ; 
Kunkle  v.  Franklin,  id.  127;  Comer 
v.  Folsom,  id.  219;  Wilson  v.  Buck- 
man,  id.  441 ;  State  v.  Newark.  3 
Dutch.  185;  Calder  v.  Bull,  3  Dall. 
386 ;  Sparks  v.  Clapper,  30  Ind.  204 ; 
Coffin  V.  State,  7  id.  157 ;  Noel  v.  Ew- 
ing,  9  id.  37;  People  v.  Fi'isbie,  26 
Cal.  1 35 ;  Rottenberry  v.  Pipes,  53 
Ala.  447 ;  Ware  v.  Owens,  42  id.  212 ; 
Bachman  v.  Chrismau.  23, Pa,  St  162  ; 
Norfolk  V.  Chamberlaiue,  29  Gratt 
534 ;  LanguiUe  v.  State,  4  Tex.  App. 
312. 

3  Post,  cli.  17. 


274 


CLASSIFICATION   AND   DESCKIPTION   OF   STATUTES. 


injuries ;  and  also  those  intended  for  the  correction  of  defects, 
mistakes  and  omissions  in  the  civil  institutions  and  adminis- 
trative polity  of  the  state.  It  is  a  rule  that  remedial  statutes 
are  to  be  hberally  construed  to  suppress  the  evil  and  advance 
the  remedy.^  But  other  rules  also  apply,  even  to  particular 
provisions  of  such  statutes  which  come  within  the  general  no- 
tion of  remedial  laws,  and  qualify  and  abridge  the  application 
of  the  rule  of  liberal  construction,  as  will  be  seen  hereafter. 
As,  for  example,  statutes  in  derogation  of  the  common  law ;  ^ 
or  for  taking  private  property  for  public  use ;  ^  statutes  grant- 
ing power,*  or  authorizing  summary  proceedings  for  obtaining 
judgment,  as  by  motion,^  writs  of  attachment,^  and  those  pro- 
viding for  any  novel  proceeding  or  remedy.'' 


1  Heydon's  Case,  3  Rep.  76;  Turtle 
V.  Hartwell,  6  T.  R  429 ;  Vigo's  Case, 
21  WaU.  648 ;  Davenport  v,  Barnes,  2 
N.  J.  L.  211 ;  Franklin  v.  Franklin,  1 
Md.  Ch.  342 ;  T^vy cross  v.  Grant,  2 
C.  P.  D.  530 ;  Ciillerton  v.  Mead,  22 
Cal.  95 ;  Hudler  v.  Golden,  36  N.  Y. 
446;  Fuller  v.  Rood,  3  Hill,  258; 
Smith  V.  Moffat,  1  Barb.  65 ;  McCor- 
mick  V.  Alexander,  2  Oliio,  284 ;  Lessee 
of  Burgett  v.  Burgett,  1  id.  219; 
Wilber  v.  Paine,  id.  17 ;  Fox  v.  New- 
Orleans,  12  La.  Ann.  154;  Fox  v. 
Sloo,  10  id.  11 ;  Schuylkill  Nav.  Co.  v. 
Loose,  19  Pa,  St.  15 ;  Quinn  v.  Fidelity, 
etc.  Asso.  100  id.  382 ;  Bolton  v.  King, 
105  id.  78;  Hassenplug's  Appeal,  106 
id.  527 ;  Poor  District  v.  Poor  Disti-ict, 
109  icL  579 ;  Tuskaloosa  Bridge  v. 
Jemison,  33  Ala,  476;  Marshall  v. 
Vultee,  1 E.  D.  Smith,  294 ;  Mayor,  etc. 
V.  Lord,  17  Wend.  285 ;  Jones  v.  Col- 
lins, 16  Wis.  594 ;  Pearson  v.  Lovejoy, 
53  Barb.  407 ;  Jackson  v.  Warren,  32 
111.  331 ;  Smith  v.  Stevens,  82  id.  554 ; 
Chicago,  etc.  R.  R.  Co.  v.  Dmm,  52  id. 
2G0;  Converse  v.  Burrows,  2  Minn. 
229 ;  Wolcott  v.  Pond,  19  Conn.  597 ; 
New  Orleans  v.  St.  Romes,  9  La.  Ann. 
573 ;  First  School  Dist.  v.  Ufford,  52 
Ooim-  44;  Llitchell  v.  MitcheU,  1  GUI, 
66. 


2  Burnside  v.  Wliitney,  21 N.  Y.  148 ; 
Smith  V.  RandaU,  3  Hill,  495 ;  People 
V.  Hulse,  id.  309 ;  Brown  v.  Fifield,  4 
Mich.  822 ;  Hollenback  v.  Fleming,  & 
Hill,  307 ;  DweUy  v.  Dwelly,  46  Me. 
377 ;  Harrison  v.  Leach,  4  W.  Va.  383 ; 
Gibson  v.  Commonwealth,  87  Pa. 
St.  253 ;  Wilson  v.  Arnold,  5  Mich. 
98 ;  Fessenden  v.  HUl,  6  id.  242 ;  Gal- 
pin  V.  Abbott,  id.  17 ;  Hoi  1  man  v. 
Bennett,  44  Miss.  322 ;  Thompson  v. 
Clay,  60  Mich.  62. 

3  Powers'  Appeal,  29  Mich.  504;^ 
Sharp  V.  Speir,  4  Hill,  76 ;  Sharp  v. 
Johnson,  4  id.  92;  GUmer  v.  Lime 
Pomt,  19  Cal.  47. 

•t  Best  V.  Gholson,  89  111.  465 ;  Banks 
V.  Darden,  18  Ga.  318 ;  Cliicago,  etc. 
R.  R.  Co.  V.  Smith,  78  lU.  96 ;  MoitIs 
Aqueduct  v.  Jones,  36  N.  J.  L.  206 ; 
Matthews  v.  Skmker,  62  Mo.  329; 
People  V,  Supervisors,  6  Hun,  304; 
Ryan  v.  State,  32  Tex.  280. 

&  Hearn  v.  Ewm,  3  Cold.  399. 

6  McQueen  V.  Middletown,  etc.  Co.  16 
John.  5 ;  Edwards  v.  Davis,  id.  281. 

"  See  Hubbell  v.  Denison,  20  Wend. 
181 ;  WaUer  v.  Harris,  id.  555 ;  Cole 
V.  Perry,  8  Cow.  214;  To^vmsend  v. 
Chase,  1  id.  115 ;  Sacia  v.  De  Graaf, 
id.  356 ;  Jackson  v.  Hobby,  20  Jolm. 
361 ;  Hale  v.  Angel,  id.  342 ;  Under- 


CLASSIFICATION    AND    DESCKII'TION    OF    STATUTES. 


275 


§  208.  Penal  statutes. —  Such  statutes  are  often  treated  as 
contradistinguished  from  remedial  statutes.  They  are  not,  how- 
ever, in  full  and  direct  contrast.  Penal  statutes  are  those  by 
which  punishments  are  imposed  for  transgTcssions  of  the  law. 
They  are  construed  strictly,  and  more  or  less  so  according  to 
the  severity  of  the  penalty.^  When  a  law  imposes  a  punish- 
ment which  acts  upon  the  offender  alone,  and  not  as  a  repara- 
tion to  the  party  injured,  and  where  it  is  entirely  within  the 
discretion  of  the  law-giver,  it  will  not  be  presumed  that  he  in- 
tended it  should  extend  further  than  is  expressed ;  and  humanity 
would  require  that  it  should  be  so  hmited  in  the  construction.- 
The  general  purpose  or  aim  of  a  statute  may  be  remedial ;  as 
where  they  provide  punitive  compensation  to  the  injured 
party.*  But  the  provisions  that  enforce  the  wrong  for  which 
a  penalty  is  provided,  and  those  which  define  the  punishment, 
are  penal  in  their  character  and  are  construed  accordingly.*  A 
statute  may  be  remedial  in  one  part  and  penal  in  another.* 


wood  V.  Irving,  3  Cow.  59 ;  Jackson 
T.  Shepherd,  6  id.  444 ;  Smith  v.  Mum- 
ford,  9  id.  29;  Bank  v.  Ibbotson,  5 
Hill,  461 ;  Hoffman  v.  Dmilop,  1  Barb. 
185 ;  People  v.  Recorder,  6  Hill,  429 ; 
Smith  V.  Argall,  id.  479 ;  Huntington 
V.  Forkson,  id.  149 ;  Sherwood  v. 
Reade,  7  id.  431 ;  Doughty  v.  Hope,  1 
N.  Y.  79 ;  Banks  v.  Quackenbush,  id. 
129 ;  Dudley  v.  Mayhew,  3  N.  Y.  9 ; 
Powell  V.  Tuttle,  icL  396 ;  Hxmiplu-ey 
V.  Chamberlain,  11  id.  274 ;  Clarkson 
V.  R.  R.  Co.  12  id.  304 ;  Wait  v.  Van 
Allen,  23  id.  319 ;  WiEard  v.  Fralick, 
31  ]\Iich.  431 ;  Colgate  v.  Penn.  Co. 
102  N.  Y.  127. 

iHaU  V.  State,  20  Oliio,  7;  Van 
Rennsselaer  v.  Sheriff,  1  Cow.  443; 
Searing  v.  Brinkerhoff,  5  John.  Cli. 
329;  Van  Valkenburgh  v.  Torrey,  7 
Cow.  252 ;  Andrews  v.  United  States, 
2  Story,  203 ;  Cai-penter  v.  People,  8 
Barb.  603 ;  State  v.  Solomons,  3  HiU 
(S.  C).  96 ;  United  States  v.  Ramsay, 
Hempst  481 ;  United  States  v.  Starr, 
Hempst  469 ;  United  States  v.  Rags- 
dale,  id.  497 ;  Commonwealth  v.  Mar- 


tin, 17  Mass.  359 ;  Commonwealth  v. 
Keniston,  5  Pick.  420;  Gibson  v. 
State,  38  Ga.  571 ;  State  v.  Upchurch, 
9  Ired.  454  5  Reed  v.  Davis,  8  Pick.  514 ; 
Warner  v.  Commonwealth,  1  Pa.  St. 
154 ;  Lair  v.  KHlmer,  1  Dutch.  522 ; 
State  V.  Whetstone,  13  La.  Ann.  376 ; 
Gunter  v.  Leckey,  30  Ala.  591 ;  United 
States  V.  Wiltberger,  5  Wheat  76; 
Randolph  v.  State,  9  Tex.  531 ;  Strong 
V.  Stebbins,  5  Cow.  210. 

2  State  V.  Stephenson,  2  BaHey,  334. 

3  Reed  v.  Northfield,  13  Pick.  94, 
100 ;  Stanley  v.  Wharton,  9  Price,  301 ; 
Palmer  v.  York  Bank,  18  Me.  166 ; 
Bayard  v.  Smith,  17  Wend.  88 ;  Fro- 
hock  V.  Pattee,  38  Me.  103 ;  Sloan  v. 
Johnson,  14  S.  &  M  47 ;  Foote  v.  Van- 
zandt,  34  Miss.  40. 

4  Bay  City,  etc.  R.  R  Co.  v.  Austm, 
21  Jlich.  390 ;  Smith  v.  Causey,  22  Ala. 
568;  Cohn  v.  Neeves,  40  Wis.  393; 
Le  Forest  v.  Tolman,  117  Mass.  109; 
Swift  V.  Applebone,  23  Mich,  252. 

5  Wynne  v.  Middleton,  1  Wils.  120; 
Raynard  v.  Chase,  1  Burr.  2,  6. 


270  CLASSIFICATION   AND    DESCRIPTION   OF    STATUTES. 

And  the  same  statute  may  be  remedial  for  certain  purposes, 
and  liberally  construed  therefor,  and  at  the  same  time  be  of 
such  a  nature,  and  operate  with  such  harshness  upon  a  class 
of  offenders  subject  to  it,  that  they  are  entitled  to  invoke  the 
rule  of  strict  construction.^  All  of  the  provisions  of  criminal 
statutes  are  not  construed  strictly ;  they  are  construed  strictly 
against  the  accused,  and  favorably  and  equitably  for  him.^ 

§  209.  Repealing  statutes. — These  are  revocations  of  former 
statutory  enactments.^  A  repeal  may  be  in  express  words 
or  by  implication ;  as  where  a  subsequent  statute  conflicting 
with  it  is  enacted.  This  subject  has  been  fully  treated  in  a 
previous  chapter.* 

1  Hathaway  v.  Johnson,  55  N.  Y.  93.  States   v.  New    Bedford   Bric^.ge,    1 

2 1  Hawk.  P.  C,  Curwood's  ed.  90 ;  Wood.  &  M.  401. 

Myers  v.  State,  1  Conn.  502 ;  Warring-  ^  Dwarr.  478. 

ton  V,  Fmbor,  8  East,  242, 245 ;  United  *  Ante,  ch.  8. 


CHAPTER  XII. 


PARTS  OF  A  STATUTE  AND  THEIR  RELATIONS. 


§  210.  The  titla 
212.  The  preamble. 

214.  Tlie  enacting  style. 

215.  The  purview. 

216.  Exceptions,  provisos,  interpre- 

tation, repeaUng  and  saving 
clauses. 


§  217.  Partial  conflict  resolved  into 

an  exception. 
218.  "Words  expounded  to   accord 

with  intent 
220.  Effect  of  total  conflict 
232.  Punctuation. 
234,  Headings  and  marginal  notes. 


§  210.  The  title. —  The  English  courts  have  always  held 
the  title  to  be  no  part  of  the  act ;  it  is  said  to  be  no  more  so 
than  the  title  of  a  book  is  part  of  the  book.^  In  strictness, 
Lord  Coke  said,  it  ought  not  to  be  taken  into  consideration  at 
all.2  It  was  generally  framed  by  the  clerk  of  the  branch  of 
parliament  where  the  act  originated,  and  was  intended  only  as 
a  convenient  means  of  reference.^  The  same  declaration,  that 
the  title  is  no  part  of  the  act,  has  been  frequently  made  by 
judges  in  this  country.*  But  in  modern  practice  the  title  is 
adopted  by  the  legislature,  more  thoroughly  read  than  the  act 
itself,  and  in  many  states  is  the  subject  of  constitutional  reg- 
ulation. It  is  not  an  enacting  part,  but  is  in  some  sort  a  part 
of  the  act,  though  only  a  formal  part.^  By  the  common  law 
it  could  not  control  the  plain  words  of  a  statute ;  it  was  re- 
sorted to  only  in  cases  of  doubt  for  such  aid  as  it  could  afford 


1  Mills  V.  WUkins,  6  Mod.  62 ;  Sal- 
keld  V.  Johnson,  2  Ex.  256,  283 ;  Rex 
V.  WiUiams.  1  W.  Bl.  93 ;  Attorney- 
General  V.  Weymouth,  1  Amb.  20; 
Chance  v.  Adams,  1  Lord  Raym.  77 ; 
Jefferys  v.  Boosey,  4  H.  L.  982 ;  Raw- 
ley  V.  Rawley,  1 Q.  B.  D.  466 ;  Bentley 
V.  Rotherham,  4  Cli.  D.  588 ;  ]\lorant 
V.  Taylor,  1  Ex.  D.  194;  Hunter  v. 
Nockolds,  1  McN.  &  Gord.  651. 

-  Attorney-General  v.  Weymouth, 
1  Amb.  20;  Powlters  Case,  11  Coke, 

3a 


3  Hadden  v.  The  Collector,  5  Wall. 
107,  110 ;  Plummer  v.  People,  74  IlL 
361. 

*  Bradford  v.  Jones,  1  Md.  351,  370 ; 
Commonwealth  v.  Slifei",  53  Pa,  St 
71 ;  Phmimer  v.  People,  74  111.  361, 
363;  Cohen  v.  Barrett,  5  CaL  195; 
State  V.  Stephenson,  2  Bailey,  (S.  C.) 
334. 

5  Hadden  v.  The  Collector,  5  WalL 
107,  110 ;  Burgett  v.  Burgett  2  Ohio, 
219,  221 ;  Plummer  v.  People,  74  IlL 
361 ;  Ogden  v.  Sti'ong,  2  Paine,  584. 


''278 


PARTS    OF    A    STATUTE    AND    THEIR    RELATIONS. 


in  removing  ambiguities.^  Acts  may  be  identified  by  the  title.^ 
An  act  may  have  effect  as  to  persons  and  subjects  broader 
than  the  title  where  the  words  are  plain,  and  where  there  is  no 
constitutional  barrier.^  But  if  the  meaning  is  doubtful,  the 
title  if  expressive  may  have  the  effect  to  resolve  the  doubts 
by  extension  of  the  purview,*  or  by  restraining  it,'^  or  to  correct 
an  obvious  error ;  ^  for  in  ascertaining  the  intention  nothing  is 
to  be  rejected  from  which  aid  can  be  derived ;  therefore,  the 
title  of  an  act  may  claim  a  degree  of  notice,  and  is  entitled  to 
its  share  of  consideration.^  Where  the  text  of  the  statute  is 
plain  and  unambiguous,  the  title  cannot  have  the  effect  to 
modify  it.^ 

§  211.  The  constitutional  provision  that  no  law  shall  em- 
brace more  than  one  subject,  and  requiring  that  to  be  ex- 
pressed in  the  title,  has  given  the  title  of  legislative  acts  more 
importance.^  It  is  not,  however,  required  or  intended  that  the 
title  shall  contain  a  full  index  to  all  the  contents  of  the  law ; 


i  United  States  v.  Fisher,  2  Cr.  358 ; 
Ogden  T.  Strong,  2  Paine,  584 ;  United 
States  V.  Palmer,  3  Wheat.  610 ;  People 
V.  Davenport,  91  N.  Y.  574 ;  People  v. 
O'Brien,  111  id.  1 ;  S.  C.  7  Am.  St.  E. 
684 ;  Hines  v.  R.  R  Co.  95  N.  C.  434 ; 
Commonwealth  v.  Gaines,  2  Va.  Cas. 
172 ;  Davidson  v,  Clayland,  1  Har.  & 
J.  546 ;  Canal  Co.  v.  R.  R.  Co.  4  GiU 
&  J.  1 ;  Kent  v.  Somervell,  7  GiU  & 
J.  265 ;  Lucas  v.  McBlah,  13  id.  1 ; 
Eastman  v.  McAlpia,  1  Ga.  157 ;  State 
V.  Cazeau,  8  La.  Ann.  109 ;  Cohen  v. 
Barrett,  5  Cal.  195 ;  State  v.  Stephen- 
son, 2  Bailey,  334 ;  Burgett  v.  Burgett, 
2  Ohio,  219 ;  Bartlett  v.  Morris,  9  Port. 
266;  Ins.  Co.  v.  Stokes,  9  Phila.  80; 
Cochran  v.  Libraiy  Co.  6  id.  492; 
Bailie's  Case,  1  Leach's  Cas.  396; 
Crespigny  v.  Wittenoom,  4  T.  R.  793 ; 
Taylor  v.  Newman,  4  B.  &  S.  89; 
Coomber  v.  Berks,  L.  R.  9  Q.  B.  Div. 
33 ;  Johnson  v.  Uphara,  2  E.  &  E.  250 ; 
Shaw  V.  Rudder,  9  Irish  C.  L.  (N.  S.) 
219 ;  Reg.  v.  Mallow  Union,  12  id.  35 ; 
Free  v.  Burgoyne,  5  B.  &  C.  400 ;  AU- 
kins  V.  Jupe,  2  C.  P.  D.  375 ;  Heard  v. 
Baskervile,  Hob.  232 ;  Wood  v.  Row- 


cliffe,  6  Hare,  191.  The  title  of  a  city 
ordinance  being  inessential  cannot 
conti'ol  the  tenor  of  the  enactment. 
Hershoff  v.  Treasurer,  etc.  45  N.  J.  L. 
288. 

2  Reg.  V.  WUcock,  7  Q.  B.  317 ;  Booth - 
royd.  In  re,  15  M.  &  W.  1. 

3  United  States  v.  Fisher,  2  Cr.  358 ; 
Powlter's  Case,  11  Coke,  33. 

4Deddi-ick  v.  Wood,  15  Pa.  St.  9; 
Ins.  Co.  V.  Stokes,  9  Phila.  80. 

5Cochi-an  v.  The  Library  Co.  G 
Phila.  492;  Yeager  v.  Weaver,  64 
Pa.  St.  425 ;  United  States  v.  Palmer, 
3  Wheat.  610,  631 ;  State  v.  Stephen- 
son, 2  BaHey,  334 ;  Field  v.  Gooding, 
106  Mass.  310;  Brett  v.  Brett,  3 
Addams,  219. 

6  Wilson  V.  Spaulding,  19  Fed. 
Rep.  304. 

■<  United  States  v.  Fisher,  suj^ra; 
Deddrick  v.  Wood,  supra. 

8  Boston  IMm.  Co.,  In  re,  51  CaL  624 : 
Commonwealth  v.  Shfer,  53  Pa.  St. 
71. 

9  Boston  Alin.  Co.,  In  re,  51  CaL  624 ; 
Cooley,  C.  L.  p.  172. 


PARTS    OF   A    STATUTE   AND   TUEIK   KELATIONS.  279 

it  is  permitted  to  be  general  in  its  terms,  and  therefore  it  will 
seldom  occur  that  it  will  afford  a  clue  to  tlie  intention  when 
the  text  of  the  statute  is  uncertain.  But  the  title  of  an  act 
is  now  so  associated  wdth  it  in  the  process  of  legislation  that 
when,  in  performing  its  constitutional  functions,  it  affords 
means  of  determining  the  legislative  intent,  in  cases  of  douljt 
its  help  cannot  be  rejected  for  being  extrinsic  and  extra- 
legislative.^  The  language  of  an  act  should  be  construed  in 
view  of  its  title  and  its  lawful  purposes ;  broad  language  should 
be  coniined  to  lawful  objects.-  The  subject  or  object  expressed 
in  the  title  fixes  a  limit  to  the  scope  of  the  act,  and  provisions 
not  germane  but  foreign  to  such  subject  will  be  excluded  as 
unconstitutional  and  void.^ 

§  212.  The  preamble. —  The  preamble  in  a  statute  is  a  pref- 
atory statement  or  explanation.  It  purports  usually  to  state 
the  reason  or  occasion  for  making  the  law  to  which  it  is  pre- 
fixed. It  accompanies  the  bill  through  the  process  of  enact- 
ment, and  thus  emanates  from  the  laAv-maker.  It  is  not  part 
of  the  law,  in  a  legislative  sense,  and  hence  can  never  enlarge 
the  scope  of  a  statute ;  it  cannot  of  itself  confer  any  power. 
Its  true  office  is  to  expound  powders  conferred,  not  substan- 
tially to  create  them.-*  But  it  is  a  guide  of  some  importance 
to  the  intention  of  the  legislature.  It  is  "  a  good  means,"  says 
Lord  Coke,  "  to  find  out  the  meaning  of  the  statute,  and  is  a 
true  key  to  open  the  understanding  thereof." "  This  affirms 
that  it  has  very  considerable  value  in  interpreting  the  statute, 
but  it  does  not  define  precisely  its  force  for  that  purpose. 
Lord  Tenterden  thus  expressed  himself  on  the  same  subject : 
"  In  construing  acts  of  parliament  we  are  to  look  not  only  to 

J  People  V.  Wood,  71  N.  Y,  371,  374 ;  necticut,  etc.  Ins.  Co.  v.  Albert,  39 

Hadeleu  v.   The    Collector,   5   Wait  Mo.  181 ;  Battle  v.  Sliivers,  39  Ga.  405 ; 

107;  People  v.  IMoljTieux,  40  N.  Y.  Nazro  v.  Merchants'  M.  Ins.  Co.  14 

113;    S.   C.   53    Barb.    9;    Bishop  v.  Wis.  :295 ;  Dodd  v.  State,  18  Ind.56; 

Barton,  2  Hun,  436 ;  People  v.  Daven-  Flynu  v.  Abbott,  16  Cai  358 ;  Garvin 

port,  91  N.  Y.  574 ;  Wilson  v.  Spaul-  v.  State,  13  Lea,  162. 

ding,  19  Fed.  Rep.  304 ;  Torreyson  v.  -  Allor  v.  Wayne  Co.  Auditors,  43 

Board    of    Examiners,    7    Nev.    19;  Mich.  76,  97;  Smger  M.  Co.  v.  Gra- 

Sinitli  V.  State,  28  Ind.  321 ;  Garrigus  ham,  8  Oregon,  17. 

V.  Board  of  Com'i-s,  39  Ind.  66 ;  Hiues  » Ante,  g  102. 

V.  Raih-oad  Co.  95  N.  C.  434 ;  Com-  •»  Story,  Com.  on  Const  §  459 ;  WU- 

momvealth  v.  Slifer,  53  Pa.  St.  71 ;  son  v.  Knubley.  7  East,  128. 

Bradford  v.  Jones,  1  Md.  370 ;  Con-  5  Co.  Litt  79a;  Plowd.  369. 


2S0  PARTS    OF    A    STATUTE    AND    THEIR    RELATIONS. 

the  language  of  the  preamble,  or  of  any  particular  clause,  but 
at  the  language  of  the  whole  act ;  and  if  we  find  in  the  pream- 
ble, or  in  any  particular  clause,  an  expression  not  so  large  and 
extensive  in  its  import  as  those  used  in  other  parts  of  the  act^ 
and  upon  a  view  of  the  whole  act  we  can  collect  from  the  more 
large  and  extensive  expressions  used  in  other  parts  the  real 
intention  of  the  legislature,  it  is  our  duty  to  give  effect  to  the 
large  expressions,  notwithstanding  the  phrases  of  less  extensive 
import  in  the  preamble,  or  in  any  particular  clause."  ^  He 
seems  to  place  the  preamble  on  an  equal  footing  with  any  par- 
ticular clause  of  the  act  itself ;  leaving  it  to  be  inferred  that  it 
is  to  be  considered  within  the  rule  requu-ing  every  part  of  an 
act  to  be  considered  in  determining  its  meaning. 

The  established  doctrine  seems  to  be  that  if,  on  reading  th& 
enacting  part,  there  is  no  ambiguity  or  doubt  as  to  its  scope  or 
meaning,  there  can  be  no  recourse  to  either  the  title  or  pre- 
amble in  search  of  a  different  meaning.  "  This  is  the  case 
where  the  words  are  plain  without  any  scruple,  and  absolute 
without  any  saving."'^  And  then  the  preamble  cannot  re- 
strain or  extend  the  import  of  the  enacting  clause.^  The  pre- 
amble cannot  be  permitted  to  introduce  doubt  or  uncertainty 
where  otherwise  it  would  not  exist.*  An  act  cannot  be  declared 
unconstitutional  for  matter  contained  in  the  preamble,  the  text 
of  the  statute' itself  being  free  from  constitutional  objection.* 
When  the  legislature  passes  an  act  within  its  powers,  a  state- 
ment of  its  reasons  in  the  preamble  will  not  affect  the  vaUd- 
ity  of  the  act.«  But  where  there  is  uncertainty,  ambiguity  or 
doubt  on  the  language  of  the  statute  itself,  the  preamble  may 
aid  as  far  as  it  canto  ascertain  the  legislative  intent.''    Where 

1  Bywater  v.  Brandling,  7  B.  &  C.    H.  L.  Cas.  358 ;  Clark  v.  Bynum,  3 
643.  McCord,298;  Covington  v.  McMckle, 

2  Co.  Inst  533.  18  B.  Mon.  262 ;  Rex  v.  St.  Peter  & 


sColehan  v.  Cooke,  "Willes,  395 
Holbrook  v.  Holbrook,  1  Pick.  248 
Jackson  v.  Gilchrist,  15  John.  89 
Emanuel  v.  Constable,  3  Riiss.  436 


St.  Paul  in  B.  1  Bott,  443. 

4  James  v.  Du  Bois,  16  N.  J.  L.  285 ; 
Bac.  Abr.  tit.  Statutes,  I.,  7. 

5  Sutherland  v.  Be  Leon,  1  Tex.  250. 


Taylor  v,  Oldham  Corporation,  L.  R.  «  Lothrop  v.  Stedman,  42  Conn.  583. 

4  Ch.  Div.  395 ;  Bentley  v.  Rotherham  ^  County  of  York  v.   Craf  ton,  100 

L.  Board,  id.  588 ;  Crespigny  v.  Witte-  Pa.  St.  619 ;  Yazoo  R.  R.  Co.  v.  Thomas, 

noom,  4  T.  R  790 ;  Lees  v.  Summers-  132  U.  S.  174 ;  Beard  v.  Rowan,  9  Pet. 

gill,  17  Ves.  508 ;  Mason  V.  Armitage,  301,   317;    Jackson    v.   Gilchrist.    15 

13  id.  36 ;  Copland  v.  Davies,  L.  R.  5  John.  89 ;  Constantine  v.  Van  Wmkle, 


PARTS    OF   A    STATUTE   AND    THEIR   RELATIONS.  281 

there  is  such  generahty  in  the  text  of  the  statute  as  renders  it 
ambiguous  as  to  scope,  the  preamble  may  be  referred  to  to 
determine  whether  such  general  language  is  to  have  the  most 
extensive  or  only  a  restricted  operation ;  for  the  purpose  of 
the  preamble  is  to  state  the  reason  and  object  of  the  law.' 
The  preamble  may  explain  an  equivocal  expression  used  in 
the  enacting  part,  but  it  can  never  control  its  obvious  mean- 
ing, nor  supply  matter  not  within  the  spu*it  and  meaning  of 
the  statute  itself.^  It  may,  in  this  sense,  be  referred  to  in  the 
construction  of  a  statute  to  which  it  was  prefixed  after  its 
enactment  without  it.^  The  generality  of  the  enacting  part 
must  be  such  as  to  amount  to  ambiguity,  or  be  such  as  to  sug- 
gest a  doubt,  to  justify  restraining  it  for  matter  in  the  pre- 
amble.* The  very  subject-matter,  without  a  preamble,  may 
have  the  effect  to  limit  general  language.^ 

§  213.  The  legislature  cannot  bind  itself  by  a  preamble,  nor 
even  by  a  statute,  so  as  to  impair  its  continuing  power  to  leg- 
islate ;  hence,  one  provision  of  an  act  will  prevail  against  an- 
other which  is  inconsistent  and  precedes  it  in  the  same  act ; 
a  fortiori  against  a  conflicting  declaration  in  the  preamble. 
The  conflict  between  two  provisions  of  the  act  must  be  obvious 
and  inveterate  to  justify  the  conclusion  that  the  latter  repeals 
the  earlier.^  The  conflict  of  a  provision  in  the  act  itself  with  the 
preamble  will  not  signify,  unless  there  is  some  obscurity  or 
doubt  as  to  the  scope  or  meaning  of  the  former,  read  alone. 
A  clear  and  explicit  enactment  is  not  cut  down  by  a  more  lim- 
ited preamble  or  recital,'  even  though  the  enacting  clause  is  in 

6  HUl,  177,  184 ;  Brett  t.  Brett,  3  ^  Goldsmid  v.  Hampton,  5  C.  B.  (N. 
Addams,  310;  Deddrick  v.  Wood,  15    S.)  94. 

Pa.   St   9 ;    Bywater    v.    Brandling,  *  Trueman  ts.  Lambert,  4  M.  &  S. 

7  B.    &    C.    643 ;  Kearns  v.    Cord-  238 ;  Hughes  v.  Done,  1  Q.  B.  301. 
wainers'  Co.  6  C.  B,  (N.  S.)  388 ;  State  ^Salkeld  v.  Jolmston,  1  Hare,  196 ; 
V.  Cazeau,   8  La.   Ann.  109 ;  United  Henderson  v.  Bise,   3  Starkie,  158 ; 
States  V.  Webster,  Davies,  38 ;  Blue  v.  Elsworth  v.  Cole,  2  M.  &  W.  31. 
McDuffie,  Busbee  L.  (N.  C.)  131 ;  Nash  «  Ante,  §  148. 

V.  Allen,  4  Q.   B.   784 ;  Crowder  v.        7  Hughes  v.  Chester,  etc.  Ry.  Co.  1 

Stewai-t,  L.  R.  10  Ch.  Div.  370.  Drew.  &  Sm.  524 ;  Kearns  v.   Cord- 

1  United  States  v.  Webster,  Davies,  wainers'  Co.  6  C.  B.  (N.  S.)  388-408 
38.  Greig  v.  Bendeno,  El.  Bl.  &  EL  133 

2  Clark  V.  Bynum,  3  jMeCord,  298 ;  Barton  v.  Hannant,   3  B.  &  S.  16 
Copeman  v.  Gallant,  1  P.  Wms.  314.  Jackson  v.   Gilchrist,   15  John.   89 

Treasurers  v.  Lang,  2  Bailey,  430. 


282 


PAETS    OF   A    STATUTE   AND   THEIR   EELATIONS. 


general  ^vords  and  the  preamble  particular.^  Strong  words  in 
the  enacting  part  of  a  statute  may  extend  it  beyond  the  pre- 
amble.^ Though  the  preamble  is  generally  a  key  to  the  statute, 
yet  it  does  not  always  open  all  parts  of  it.  Sometimes  the  legis- 
lature, having  a  particular  mischief  in  view,  to  prevent  which 
was  the  first  and  immediate  object  of  the  statute,  recites 
that  in  the  preamble,  and  then  goes  on  in  the  body  of  the  act 
to  provide  a  remedy  for  general  mischiefs  of  the  same  nature 
but  of  different  species,  not  expressed  in  the  preamble  nor  per- 
haps then  in  contemplation.^ 


1  Bac.  Abr.  tit.  Statutes,  I. ;  Ti-eas- 
urers  v.  Lang,  supra. 

2Pattisou  V.  Bankes,  2  Cowper, 
543 ;  Rex  v.  Marks,  3  East,  160. 

3  Mace  V.  Cammel,  Loff t.  783 ;  Hol- 
brook  V.  Holbi-ook,  1  Pick.  248 ;  Cole- 
han  V.  Cooke,  Willes,  395.  In  State 
V.  Cazeau,  8  La.  Ann.  109,  the  court 
say :  "  The  title  of  the  law  is :  '  An 
act  to  authorize  equitable  assignees 
to  sue  in  thek  own  names ; '  and  the 
words  of  the  i^reamble  are, '  whereas 
•equitable  assignees  have  frequently 
sustained  injm'ies  and  loss  by  the 
death  of  assignors,  or  legal  plaintiff,' 
which  are  supposed  to  have  the  effect 
to  restrict  the  broad  words  of  the  en- 
acting clause,  and  to  confine  them  to 
the  case  of  an  assignee  whose  as- 
signor has  died  without  making  an 
executor,  and  on  whose  estate  there 
is  no  administration.  It  is  admitted 
that  where  the  words  of  the  enacting 
•clause  are  of  double  meaning,  and 
the  mind  is  at  a  loss  to  discover  their 
true  construction,  and  determine 
what  it  is  that  they  embrace,  it  seizes 
upon  anything  from  which  assistance 
can  be  derived,  and  in  that  effort 
looks  to  the  title  or  preamble  (if  there 
be  (jnej,  or  to  both,  in  search  of  the 
-aid  it  requhes ;  by  which  many  a  key 
is  sometunes  found,  to  open  the  door 
i»  the  intention  of  the  legislature, 
that  otherwise  would  be  locked  up  in 
•obscurity.     In  such  a  case  and  for 


that  purpose,  the  preamble,  or  the 
title,  has  a  claun  to  consideration.  But 
its  office  is  auxiliary  only,  and  stops 
there ;  and  neither  to  be  invoked  for 
the  pui-pose  of  restricting  and  control- 
ling plain  and  unambiguous  words  in 
the  enacting  xlause  or  body  of  the 
law.  A  preamble,  it  must  be  admit- 
ted, sometimes  mistakes,  or  does  not 
fully  state,  the  whole  object  of  the 
legislature ;  and  where  the  words  in 
the  body  of  the  law,  taken  in  then- 
plain  obvious  and  natural  sense  as 
there  found,  embrace  a  subject  not 
stated  in  the  preamble,  the  preamble 
is  not  to  control,  and  narrow  them 
down  to  its  own  restricted  limits; 
but  if  looked  to  at  all,  it  is  to  be  con- 
sidered as  not  stating  the  entire  ob- 
ject of  the  legislature.  Though  where 
the  words  used  in  the  body  of  the 
law  are  in  themselves  ambiguous,  and 
requhe  the  aid  of  the  preamble  to 
give  them  apphcation,  it  may  for  that 
purpose  be  resorted  to. 

"  In  this  case  the  words  of  the  title 
are  co-extensive  with  the  words  of 
the  enacting  clause,  and  although  tlie 
preamble  recites  that  equitable  as- 
signees have  frequently  sustained  in- 
juries and  loss  by  the  death  of  the 
assignor,  or  legal  plaintiff,  yet  it  does 
not  declare  that  case  to  be  the  only 
subject  intended  to  be  legislated  upon. 
And  the  words  of  the  enacting  clause, 
'any  assignee  or  assignees,'  plainly 


TAKTS    OF    A    STATUTE    AXD    TIIEIU    EELATIOXS.  283 

Though  the  preamble  of  one  act  may  appear  to  be  directed 
against  a  particular  evil,  and  though  another  act  may  be  passed 
to  aid  its  application,  the  provisions  of  the  second  act  are  not 
necessarily  to  be  confined  to  the  special  purpose  Avhich  seemed 
to  be  the  particular  object  which  the  first  had  in  view.  Its 
own  words  must  be  considered  as  explaining  and  defining  its  ob- 
jects and  its  meaning.^  It  has  been  stated  to  be  a  genei'ul  rule 
that  the  preamble  may  extend,  but  cannot  restrain,  the  effect 
of  the  enacting  clause.^  In  a  late  English  case  it  was  held : 
"  We  are  to  give  effect  to  the  preamble  to  this  extent,  namely, 
that  it  shows  us  what  the  legislature  was  intending ;  and  if  the 
words  of  the  enactment  have  a  meaning  which  does  not  go  be- 
yond that  preamble,  or  which  may  come  up  to  the  preamble, 
in  either  case  we  prefer  that  meaning  to  one  showing  an  in- 
tention of  the  legislature  which  would  not  answer  the  purposes 
of  the  preamble  or  which  would  go  beyond  them.  To  that 
extent  only  is  the  preamble  material."  ^  "We  ought  not  to  re- 
strict a  section  in  an  act  by  the  j^reamble  where  the  section  is 
not  inconsistent  with  the  spirit  of  the  act.*  "While  an  enact- 
ment is  conclusive  as  to  the  facts  it  states  against  those  who 
are  within  its  operation,  though  not  as  to  such  as  are  not  within 
its  enacting  part,-^  a  mere  recital  in  a  statute,  either  of  fact  or 
of  law,  is  not  conclusive.     A  court  is  at  liberty  to  decide  the 

and  clearly  embracmg,  according  to  when  it  is  not  perceived  that  any  niis- 
theu-  natural  and  ordinary  meanmg,  cliief  can  be  done,  by  giving  effect 
any  assignee,  whether  the  assignor  to  the  words  in  the  body  of  the  law, 
be  dead,  with  or  without  an  executor,  according  to  their  natui-al  plain  mean- 
er adniinistiation  upon  liis  estate,  ing  and  import"  See  Mayor,  etc.  v. 
they  are  not  to  be  resti'icted  to  the  re-  Moore,  6  Harris  &  J.  375 ;  Kent  v. 
cital  in  the  preamble.  But  effect  is  to  Somervell,  7  Gill  &  J.  265. 
be  given  to  the  plain  words  of  the  ^  Copland  v.  Davies,  L.  R.  5  II.  L. 
legislatui'e  expressed  in  the  enacting  Cas.  358. 

clause,  as  embracing  not  merely  the  -  Kearns  v.  Cordwainers'  Co.  G  C.  B. 

subject  of  the  recital  in  the  pream-  (N.  S.)  388. 

ble,  but  extending  beyond  the  recital,  3  Per  Lord  Blackburn,  West  Ham 

and  embracing  every  other  case  com-  Overseers  v.  lies,  L.  E,  8  App.  Cas. 

prehended  within  theii*  clear  meaning,  386. 

without  resorting  to  the  i)reanible,  *  Sutton  v.  Sutton,  L.  R.  22  Ch.  Div. 

for  the  purpose  of  restricting  or  con-  511. 

trollmg    them ;    no    exi^lanation    of  ••  See  Edinburgh,  etc.  R  R.  Co.  v, 

their  meaning  or  ai)phcatiun  being  Linlithgow,  3  Macq.  H.  L.  Cas.  70-4 ; 

required  by  any  ambiguity  in  the  Perry  v.   Newsom,  1   Ired.   Eq.   28; 

body  of  the  law.     And  particularly  3  Atk.  304 ;  Cowp.  698. 


2 Si  PARTS    OF    A    STATUTE    AND    THEIK    RELATIONS. 

law  differently,  and  to  inquire  independently  as  to  the  truth  of 
the  recited  facts.^ 

§  214.  The  enacting  style. —  This  part  of  a  statute  has  been 
discussed  in  a  previous  section  with  reference  to  its  material- 
ity to  the  validity  of  an  act.^  It  indicates  from  what  author- 
ity the  law  emanates,  and  hence  its  jurisdiction ;  but  that  is 
always  recognized  and  the  law  identified  as  passed  by  a  de- 
terminate legislative  body  constitutionally  created  to  legislate 
for  the  territory  or  country  where  such  law  is  supposed  to 
operate,  before  any  question  of  interpretation  arises.  The 
reference  in  the  style  to  the  enacting  power  is  only  useful  as 
an  announcement  of  the  authority  which  commands  in  the 
act.  When  interpretation  begins,  that  legislative  jurisdiction 
is  always  taken  for  granted  and  in  view,  subject  to  the  lim- 
itations imposed  by  the  paramount  law. 

§  215.  The  purvieu;  one  part  to  he  construed  hj  an- 
other.—  The  enacting  part  of  a  law  is  comprehensively  termed 
its  purview.  It  has  been  defined  to  be  that  part  of  an  act  of 
the  legislature  which  begins  with  the  words  "  Be  it  enacted," 
etc.,  and  ends  with  the  repealing  clause.^  It  is  not  unfre- 
quently  used,  however,  to  indicate  the  providing  part  only,  and, 
therefore,  excluding  exceptions,  provisos  and  saving  clauses ; 
it  is  used  to  refer  to  such  providing  part  in  distinction  from 
such  restrictive  clauses.*    It  is  to  be  presumed  that  aU  the 

'  Regina  v.  Haughton,  1  EL  &  BL  which  rights  depend  are  true  or  false 

501 ;  Board  of  Com'rs  v.  State,  9  Gill,  is  an  inquiry  for  the  courts  to  make 

379-400 ;  State  v.  Reed,  4  H.  &  McH.  imder  legal  forms ;  it  belongs  to  the 

10 ;  Dimcombe  v.  Prindle,  12  Iowa,  1.  judicial  depai-tment  of  the  govem- 

See  Rex  v.  Sutton,  4  M.  &  S.  532.   An  ment."    Dougherty  v.  Bethune,  7  Ga. 

inquiry  by  the  legislatui-e  into  the  90;  Thornton  v.   Lane,   11   Ga.  459. 

affairs  of  a  corporation  with  refer-  See  People  v.  Tyler,  7  Mich.  161 ;  Peo-. 

euce  to  a  repeal  of  its  charter  is  not  a  pie  v,  Lawrence,  36  Barb.  177. 

judicial  act.     Lothrop   v.    Stedman,  -  Ante,  §  05. 

42  Conn.  583.   A  party  is  not  estopped  3  Bouv.   Law    Die.    tit.    Purview ; 

to  deny  facts  recited  in  an  act  of  the  Bish.  W.  L.  §  52. 

legislature.    So  far  as  the  facts  re-  4  The   San   Pedro,  3  Wheat.   132. 

cited  are  concerned  it  is  no  law,  and  Dwarris  says :  "  The  parts  of  statutes 

the  court  is  not  bound  to  take  judi-  are  —  in  a  popular,  though  not  legal 

cial  cognizance  of  it.    The  investiga-  sense  — the  title,  the  preamble,  the 

tion  of  facts  belongs  to  the  judicial  purview  or  body  of  the  act,  clauses, 

department.    The  court:  "The  leg-  provisos,    exceptions."    Dwar.    Stat 

islature  has  no  power  to  legislate  the  (2d  ed.)  500. 
truth  of  facts.    Whether  facts  upon 


TAKTS    OF    A    STATUTE    AND    TIIEIK    RELATIONS. 


285 


subsidiary  provisions  of  an  act  harmonize  with  each  other,  and 
with  the  purpose  of  the  law ;  if  tlie  act  is  intended  to  emhrace 
several  objects,  that  they  do  not  conllict.  Therefore  it  is  an 
elementary  rule  of  construction  that  all  the  parts  of  an  act  re- 
lating to  the  same  subject  should  be  considered  together,  and 
not  each  by  itself.^  By  such  a  reading  and  consideration  of  a 
statute  its  object  or  general  intent  is  sought  for,  and  the  con- 
sistent auxiliary  ellect  of  each  individual  part.  Flexible  lan- 
guage which  may  be  used  in  a  restricted  or  extensive  sense 
will  be  construed  to  make  it  consistent  with  the  purpose  of 
the  act  and  the  intended  modes  of  its  operation  as  indicated 
by  such  general  intent,  surve}''  and  comparison  —  ex  antecedcn- 
tibus  et  consequentibus  Jit  optima  interpretatio?  The  order  in 
which  provisions  occur  in  a  statute  is  immaterial  where  the 
meaning  is  plain  and  there  is  not  a  total  conflict.     A  later 


iCo.  Litt  381a;  Little  Rock,  etc. 
R  R.  Co.  V.  HoweU,  31  Ark.  119; 
Wilson  V.  Biscoe,  11  Ark.  44 ;  Strode 
V.  Stafford  Justices,  1  Brock.  162 ;  EUi- 
sou  V.  Mobile,  etc.  R.  R.  Co.  36  Miss. 
573 ;  Swann  v.  Buck,  40  id.  804 ;  City 
Bank  v.  Huie,  1  Rob.  236;  United 
States  V.  Hawkins,  4  Mart.  (N.  S.)  317 ; 
]\Iayor  v.  Howard,  6  Har.  &  J.  388 ; 
HarreU  v.  Harrell,  8  Fla.  46 ;  State  v. 
Atkins,  35  Ga.  315 ;  Potter  v.  Safford, 
50  Mich.  46 ;  Reithmiller  v.  People,  44 
id  280,  284 ;  Van  Fleet  v.  Van  Fleet, 
49  id.  610 ;  People  v.  Burns,  5  id.  114 ; 
Harrison,  Ex  parte,  4  Cow,  63 ; 
Kelley's  Heirs  v.  McGuire,  15  Ark. 
555 ;  Pennington  v.  Coxe,  2  Cranch, 
33 ;  Rice  v.  Railroad  Co.  1  Black,  358 ; 
Atkins  V.  Disintegrating  Co.  18  WaU. 
272 ;  Wilkinson  v.  Leland,  2  Pet  627 ; 
Mason  v.  Finch,  3  III  223 ;  BeUeville 
R.  R  Co.  V.  Gregory,  15  id.  20 ;  Burke 
V.  ^Monroe  Co.  77  id.  610 ;  Thompson  v. 
Bulson,  78  id.  2-77 :  Williams  v.  Peo- 
ple, 17  III  App.  274 :  United  States  v. 
Bassett,  2  Story,  389 ;  Ogden  v.  Sti-ong, 
2  Paine,  584 ;  Holbrook  v.  Holbrook, 
1  Pick.  248 ;  Commonwealth  v.  Alger, 
7  Cush.  53 ;  Meudou  v.  Worcester,  10 


Pick.  235;  Commonwealth  v.  Cam- 
bridge, 20  id.  267 ;  San  Francisco  v. 
Hazen,  5  CaL  169 ;  Taylor  v.  Palmer, 
31  id.  240 ;  Gates  v.  Salmon,  85  id.  576 ; 
Davey  v.  Burlington,  etc.  R.  R.  Co.  31 
Iowa,  553;  Beny  v.  Clary,  77  Me. 
482 ;  Brooks  v,  Comraissionei-s,  31 
Ala.  227 ;  State  v.  Mayor,  etc.  35  N, 
J.  L.  197 ;  Canal  Co.  v.  Raili-oad  Co.  4 
Gill  &  J.  1 ;  Magruder  v.  CarroU,  4  Md, 
335 ;  Alexander  v.  Worthiugton,  5  id. 
471 ;  Parkinson  v.  State,  14  Md.  184; 
Stockett  V.  Bird,  18  id.  484;  Com- 
monwealth V.  Duane,  1  Binn.  601 ; 
Commonwealth  v.  Conyngham,  66 
Pa  St  99 ;  Holl  v.  Desliler,  71  id 
299 ;  Catlin  v.  Hull,  21  Vt  152 ;  Rye- 
gate  V.  Wardsboro,  30  id.  746 ;  ]\Iaple 
Lake  v.  Wright  Co.  12  Minn.  403 ; 
Gas  Co.  T,  Wheeling,  8  W.  Va.  320 ; 
Scott  V.  State,  22  Ark.  369 ;  Torrance 
V.  McDougald,  12  Ga.  526 ;  Covington 
V.  McNickle,  18  B.  Mon.  269 ;  Rug- 
gles  V.  Washington  Co.  3  LIo.  490 ; 
State  V.  Weigel,  48  id.  29 ;  Green  v. 
Cheek,  5  Ind  105 ;  Crone  v.  State,  49 
id.  538. 

2  Holl  V.  Deshler,  71   Pa.   St   299 ; 
Rogers  v.  Rogers,  3  Wend  503,  526. 


286  PARTS    OF    A    STATUTE    AND    THEIE    RELATIONS. 

clause  or  provision  may  qualify  an  earlier  one,  and  tlie  con- 
verse is  equally  true.^ 

§  216.  Exceptions,  provisos,  interpretation,  repealing  and 
saving  clauses  are  often  introduced  to  restrict  or  qualify  the 
effect  of  general  language,  remove  possible  obscurities  that 
might  otherwise  exist,  and  render  the  law  more  precise.  These 
will  be  presently  considered.  But  one  provision  may  be  quali- 
fied by  another,  though  it  does  not  profess  to  have  that  ef- 
fect. Words  expressive  of  a  particular  intent  incompatible 
with  other  words  expressive  of  a  general  intent  will  be  con- 
strued to  make  an  exception,  so  that  all  parts  of  the  act  may 
have  effect.-  The  context  may  thus  serve  to  engraft  an  ex- 
ception by  implication  to  dispose  of  an  apparent  conflict ;  to 
restrict  general  words,  to  limit  them  to  the  subject-matter  of 
the  act,  or  to  expand  words  beyond  their  natural  import  if 
taken  alone.    A  few  cases  will  be  given  to  illustrate  these  points. 

§  217.  Partial  conflict  resolved  into  an  exception. —  The 
law  will  not  allow  the  revocation  or  alteration  of  a  statute  by 
construction  when  the  words  may  have  their  proper  operation 
without  it.*  But,  in  the  nature  of  things,  contradictions  cannot 
stand  together.*  Where  there  is  an  act  or  provision  which  is  gen- 
eral, and  applicable  actually  or  potentially  to  a  multitude  of  sub- 
jects, and  there  is  also  another  act  or  provision  which  is  par- 
ticular and  applicable  to  one  of  these  subjects,  and  inconsistent 
with  the  general  act,  they  are  not  necessarily  so  inconsistent 
that  both  cannot  stand,  though  contained  in  the  same  act,  or 
though  the  general  law  Avere  an  independent  enactment.^  The 
general  act  would  operate  according  to  its  terms  on  all  the 
subjects  embraced  therein,  except  the  particular  one  which  is 
tlie  subject  of  the  special  act.^  That  would  be  deemed  an  ex- 
ception, unless  the  terms  of  the  later  general  law  manifested 
an  intention  to  exclude  the  exception.     If  the  general  and 

1  Gibbons  v.  Brittenum,  56  Miss.  v.  Felt,  19  Wis.  193 ;  State  v.  Goetze, 
239 ;  Endlich,  §§  38,  182.  23  id.  363 ;  Elton  v.  Geissert,  10  Pliila. 

2  Chui-chiU  V.  Crease,  5  Bing.  177,  330 ;  Long  v.  Gulp,  14  Kan.  412 ;  War- 
ISO  ;  Stockett  v.  Bird,  18  Md.  484.  ren  v.   Shuman,  5  Tex.  441 ;   Pretty 

3  Lyn  V.  Wyn,  Bridg.  122.  v.  SoUy,  26  Beav.  606 ;  Taylor  v.  Old- 
*  Re  Hickory  Tree  Road,  43  Pa  St.    ham  Corporation,   L.  R.  4  Cli.  Div. 

139,  143.  395 ;  Gregory's  Case,  6  Rep.  19&;  Fos- 

5  Ante,  §  157.  ter's  Case,  11  Rep.  58&. 

«  Crane  v.  Reeder,  22  Mich.  322 ;  Felt 


PARTS    OF   A    STATUTE    AND   THEIR    RELATIONS.  28T 

special  provisions  are  in  the  same  act,  or  passed  on  the  samo 
day  in  separate  acts,  or  at  the  same  session  of  the  legislature^ 
the  presumption  is  stronger  that  both  are  intended  to  operate. 
In  adjusting  the  general  provisions  in  a  general  act  to  the  par- 
ticular provisions  of  the  special  act,  considerations  of  reason 
and  justice,  and  the  universal  analogy  of  such  provisions  in 
similar  acts,  are  proper  to  be  borne  in  mind,  and  ought  to  have 
much  weight  and  force.^  A  local  act  provided  that  the  auditor 
of  a  particular  county  should  receive  an  annual  salary  of  $700 
in  full  for  his  official  services.  On  the  followiug  day  a  general 
act  was  passed  imposing  additional  duties  on  auditors ;  and  it 
provided  a  compensation  by  a  percentage  on  certain  funds.  It 
was  held  that  these  were  to  be  construed  as  one  act,  and  that 
the  first  act  exclusively  controlled  as  to  the  particular  county .^ 
A  general  act  made  the  term  of  revenue  commissioners  four 
years ;  by  another  act,  passed  the  same  day,  the  charter  of  a 
particular  city  was  amended  so  as  to  make  the  official  term  of 
its  revenue  commissioners  two  years ;  it  was  held  that  this 
amendment  made  a  special  exception  to  the  general  rule.'  If 
an  act  in  one  section  authorizes  a  corporation  to  sell  a  partic- 
ular piece  of  land,  and  in  another  prohibits  it  from  selhng  any 
land,  the  first  section  is  not  repealed,  but  wUl  be  treated  as 
creating  an  exception.^  An  absolute  direction  in  one  section 
to  set  off  for  a  widow  and  children  the  decedent's  homestead,, 
free  from  all  his  debts,  though  absolute  in  terms,  was  held 
qualified  by  a  subsequent  section,  which  in  terms  embraced 
such  homestead,  subjecting  it  to  debts  contracted  prior  to  the 
passage  of  the  act,' 

§  218.  Words  expanded  or  limited  to  accord  with  intents 
It  is  indispensable  to  a  correct  understanding  of  a  statute  to 
inquire  first  what  is  the  subject  of  it,  what  object  is  intended 
to  be  accomplished  by  it."  When  the  subject-matter  is  once 
clearly  ascertained  and  its  general  intent,  a  key  is  found  to  all 

1  Meti-opolitau  Disti-ict  Ry.  Co.  v.  v.  Mayor  of  Brecon,  28  L.  J.  Ch.  600 ; 
Shai-pe,  L.  R  5  App.  Cas.  431.  26  Bevan,  533. 

2  La  Grange  v.  Cutler,  6  Ind.  354 ;  5  Sunonds  v.  Powers,  28  Yt  854 
St.  Martin  v.  New  Orleans,  14  La,  Ann.  6  olive  v.  Walton,   33  Miss.    114 ; 
113.  Green  v.  Weller,  32  Miss.  650 ;  Burr 

SBranham  v.   Long,   78  Va.   352;    v.   Dana,   22  Cid.    11;    Woodiniff   v. 

State  V.  Trenton,  38  N.  J.  L.  64  State,  3  Ark.  285 ;  WasseU  t.  Timnah, 

*  Per  Romilly,  M.  R.,  in  De  Winton    25  id.  101 ;  Green  v.  State,  59  Md- 123. 


288  PAETS    OF    A    STATUTE    AND    THEIK    RELATIONS. 

its  intricacies ;  —  general  words  may  be  restrained  to  it,  and 
those  of  narrower  import  may  be  expanded  to  embrace  it  to 
effectuate  that  intent.  "When  the  intention  can  be  collected 
from  the  statute,  words  may  be  modified,  altered  or  supplied 
so  as  to  obviate  any  repugnancy  or  inconsistency  with  such 
intention.^  Thus  in  the  construction  of  a  temporary  appro- 
priation act  the  presumption  is  that  any  special  provisions  of 
a  o-eneral  character  therein  contained  are  intended  to  be  re- 
stricted  in  their  operation  to  the  subject-matter  of  the  act,  and 
not  permanent  regulations,  unless  the  intention  of  making 
them  so  is  clearly  expressed.^  In  an  act  giving  to  pilots  a  hen 
upon  vessels,  though  the  statute  was  general,  it  was  held  not 
intended  to  apply  to  men-of-war  of  the  United  States,  because 
the  remedy  provided  could  not  be  applied.^  General  words 
may  be  cut  down  when  a  certain  application  of  them  would 
antagonize  a  settled  policy  of  the  state.*  The  provision  in  a 
general  repealing  act  that  "  no  offense  committed  or  penalty 
incurred  previous  to  the  time  when  any  statutory  provision 
shall  be  repealed  shall  be  affected  by  such  repeal,"  was  con- 
strued as  relating  solely  to  laws  repealed  by  that  act.^  In  the 
Eureka  Case,"  Mr.  Justice  Field  said :  "  Instances  without 
number  exist  where  the  meaning  of  words  in  a  statute  has 
been  enlarged  or  restricted  and  qualified  to  carry  out  the  in- 
tention of  the  legislature.  The  inquiry,  where  any  uncer- 
tainty exists,  always  is  as  to  what  the  legislature  intended, 
and  when  that  is  ascertained  it  controls.  In  a  recent  case  be- 
fore the  supreme  court  of  the  United  States,  singing  birds 
were  held  not  to  be  live  animals  within  the  meaning  of  a  rev- 
enue act  of  congress.^    And  in  a  previous  case,  arising  upon 

1  Quin  V.  O'Keeffe,  10  Ir.  C.  L.  (N.  S.)  King,  44  Mo.  283 ;  Wlieeler  v.  McCor- 

393 ;  Nuth  v.  Tamplin,  L.  R.  8  Q.  B.  mick,  8  Blatchf.  267 ;  Att'y-Gen'l  v. 

Div.  253 ;  Wainewright,  In  re,  1  PliiL  Kwok-A-Sing,  L.  R  5  P.  C.  179. 

258 ;  Brinsfield  v.  Carter,  2  Ga.  150 ;  2  United  States  v.   Jarvis,   Davies, 

Bkinchard  v.  Sprague,  3  Sumn,  279 ;  274 ;  Minis  v.  United  States,  15  Pet. 

Cope  V.  Dohert}^  2  De  G.  &  J.  614 ;  445. 

Shoemaker  v.  Lansing,  17  Wend.  327 ;  3  Ayers    v.    Knox,    7    Mass.    306 ; 

People  V.  Commissioners,  3  Hill,  601 ;  Mayor,  etc.  v.  Root,  8  Md.  95. 

Bishop  V.  Barton,  2  Hun,  436 ;  Mat-  *  Greenhow  v.  James,  80  Ya  636. 

thews  V.  Commonwealth,  18  Gratt.  ^  Mongeon  v.  People,  55  N.  Y.  613. 

989 ;  Taylor  v.   McGill,   6  Lea,  294 ;  64  Sawyer,  302,  317. 

lyiilburn  v.  State,  1  I\ld.  17 ;  State  v.  7  Reiche  v.  Smythe,  13  WalL  162. 


PARTS   OF   A   STATUTE    AND   THEIR   RELATIONS. 


289 


the  construction  of  the  Oregon  donation  act  of  congress,  the 
term,  a  single  man,  was  held  to  include  in  its  meaning  an  un- 
married woman."  '  In  the  dower  act  of  the  3  and  4  "Will  lY., 
chapter  105,  the  word  land,  defined  to  include  manors,  mes- 
suages and  aU  other  hereditaments  both  corporeal  and  incorpo- 
real, except  such  as  are  not  liable  to  dower,  was  held  not  to 
include  copyhold  lands,  because  it  provides  that  the  widow 
shall  not  be  entitled  to  dower  when  tlte  deed  by  which  the  land 
was  conveyed  to  her  husband  contains  a  declaration  to  that 
effect.  That  provision  showed  that  only  land  so  transferable 
was  in  contemplation  of  the  legislature.-  An  act  for  raisino- 
state  taxes  provided  for  a  certain  tax  on  railroads  on  the  basis 
of  passengers,  and  that  they  should  not  be  assessed  with  any 
tax  on  their  lands,  buildings  or  improvements.  This  exemption 
was  confined  to  taxes  of  the  kinds  provided  for  in  the  act,  and 
it  was  held  it  did  not  conflict  with  another  act  providing  for 
municipal  taxation.*  In  determining  the  scope  of  general  pro- 
visions there  is  a  leaning  to  prevent  absurdity,  for  it  cannot 
be  deemed  intended ;  *  also  injustice,  for  like  reason.* 


1  SUver  V.  Ladd,  7  Wall.  219. 

2  Smith  V.  Adams,  5  De  G.  M.  &  G. 
719. 

'  Orange,  etc.  R  R  Ca  v.  Alexan- 
dria, 17  Gratt.  176. 

<  State  V.  Clark,  5  Dutcher,  06; 
Commonwealth  v.  Loring,  8  Pick. 
370;  Bailey  v.  Commonwealth,  11 
Bush,  688;  Hemy  v.  Tilson,  17  Vt 
479;  Plumstead  Board  of  Works  v. 
Spackman,  L.  R  13  Q.  R  Div.  878. 

5  Mm-ray  v.  Gibson,  15  How.  (U.  S.) 
421 ;  Robinson  v.  Varnell,  10  Tex.  382 ; 
Meade  v.  Deputy  ]\Iarshal,  1  Brock. 
324;  Commonwealth  v.  Slack,  19 
Pick.  304.  In  Commercial  Bank  v. 
Foster,  5  La,  Ann.  516,  the  provision 
of  a  bank  charter  that  if  the  bank 
should  suspend  or  refuse  payment, 
the  holder  should  be  entitled  to  in- 
terest from  the  time  of  the  suspen- 
sion until  payment,  did  not  apply 
after  resumption ;  that  interest  would 
then  cease.  The  object  of  the  statute 
was  then  answered,  and  tlie  penalty 
19 


could  only  be  exacted  for  the  time 
the  bank  was  in  default  A  statute 
of  Jlississippi  declares  that  the  stat- 
ute of  limitation  shall  not  apply  to 
notes,  bills  or  evidences  of  debt  is- 
sued by  any  bank  or  moneyed  corpo- 
ration. The  com-t :  "  'Wliile  the  gen- 
eral rule  is  that  statutes  of  limitation 
do  not  apply  to  bank-bills,  because 
they  ai-e  by  the  consent  of  mankind 
and  course  of  business  considered  as 
money,  and  that  their  date  is  no  evi- 
dence of  the  time  when  they  were 
issued,  as  they  are  being  continually 
returned  and  issued  by  the  banks, 
yet  if  such  bills  have  ceased  to  cii-cu- 
late  as  ciurency,  and  have  ceased  to 
be  taken  in  and  reissued  by  the 
banks,  they  no  longer  have  that  dis- 
tinctive character  from  other  con- 
tracts which  excepts  them  from  the 
operation  of  the  statutes  of  limitation. 
Butts  V.  Vicksbui-g,  etc,  R.  R.  Co,  63 
Miss,  462;  2  Danl.  on  Neg.  Inst 
§  1684;  Kimbro  v.  Bank  of  Fulton, 


290  PAETS    OF   A   STATUTE   AND   THEIK   RELATIONS. 

§  219.  Not  only  may  the  meaning  of  words  be  restricted  by 
the  subject-matter  of  an  act  or  to  avoid  repugnance  with  other 
parts,  but  for  like  reasons  they  may  be  expanded.  The  appli- 
cation of  the  words  of  a  single  provision  may  be  enlarged  or 
restrained  to  bring  the  operation  of  the  act  within  the  inten- 
tion of  the  legislature,  when  violence  will  not  be  done  by  such 
interpretation  to  the  language  of  the  statute.^  The  propriety 
and  necessity  of  thus  construing  words  are  most  obvious  and 
imperative  when  the  purpose  is  to  harmonize  one  part  of  an 
act  with  another  in  accord  with  its  general  intent.  The  stat- 
ute itself  furnishes  the  best  means  of  its  own  exposition ;  and 
if  the  intent  of  the  act  can  be  clearly  ascertained  from  a  read- 
ing of  its  provisions,  and  all  its  parts  may  be  brought  into 
harmony  therewith,  that  intent  will  prevail  without  resorting 
to  other  aids  for  construction.^  The  intention  of  an  act  will 
prevail  over  the  literal  sense  of  its  terms.^  So  general  words 
in  one  part  may  be  controlled  and  restrained  by  particular 
words  in  another,  taken  as  expressing  the  same  intention  with 
more  precision.^  The  true  meaning  of  any  clause  or  provision 
is  that  which  best  accords  with  the  subject  and  general  pur- 
pose of  the  act  and  every  other  part.  The  word  notice  was 
held  to  mean  a  written  notice  because  certain  provisions  re- 
quired it  to  be  served  or  left  in  a  particular  manner.'    Where 

49  Ga  419."  Clark's  Succession,  11  La.  Scaggs  v.  Baltimore,  etc.  R.  R.  Co.  10 

Ann.  124 ;  United  States  v.  Karby,  7  Md.  268 ;  Beal  v.  Harwood,  2  Har. 

Wall  482 ;  Reiche  v.  Smythe,  13  WaR  &  J.  167 ;  HoU  v.  Desliler,  71  Pa.  St. 

162;   Ellis,  Ex   parte,    11  CaL   222;  299;  Rogers  v.  Rogers,  3  Wend.  503. 

McLeUand  v.  Shaw,  15  Tex.  319.    •  526 ;  Learned  v.  Corley,  43  Miss.  687  : 

1  Maxwell  v.  Collins,  8  Ind.  38,  40 ;  Reynolds  v.  Holland,  35  Ark.  56. 
Quin  V.  O'Keeffe,  10  Ir.  C.  L.  (N.  S.)  393 ;  » Id. 

Wainewright,Inre,lPhiL258;  Brins-  ^Simonds  v.  Powers,  28  Vt.  354; 

field  V.  Carter,  2  Ga.  150 ;  Cope  v.  Long  v.  CuJp,  14  Kan.  412 ;  Electi-o 

Doherty,  2  De  G.  &  J.  614 ;  Collins  v.  M.  etc.  v.  Van  Auken,  9  Colo.  204 : 

Welch,  L.  R.  5  C.  P   Div.  29;  Rich-  Covington  v.  McNickle,  18  B.  Mon. 

ards  V.  McBride,  L.  R  8  Q.  B.  Div.  262 ;   Maple  Lake  v.  Wright  Co.  12 

119;  Meti-opolitan  B'd  of  Works  v.  Minn.  403;  Rex  v.  Midland  Ry.  Co. 

Steed,  id.  445 ;  Sams  v.  Kmg,  18  Fla.  L.   R  10  Q.  B.   389 ;    Fredericks   v. 

557.  Howie,  1  H.  &  C.  381 ;  Re  Hermance, 

2  Green  v.  W^eller,  32  Miss.  650;  71  N.  Y.  481;  Spackman's  Case,  1 
Smith  v.  BeU,  10  M.  &  W.  378 ;  Ste-  Macn.  &  G.  170 ;  Foster  v.  Blount,  18 
phenson  v.  Higgmson,  3  H.  L.  Cas.  Ala.  687 ;  Woodworth  v.  State,  26 
€38 ;    Sussex    Peerage,    11   CL  &  F.  Ohio  St  196. 

85;  Cearfoss  v.  State,  42    Md,  406;        sMoyle  v.  Jenkins,  51  L.  J.  Q.  B. 


PARTS    OF    A    STATUTE    AND    THEIR    RELATIONS.  291 

general  and  particular  words  occur,  having  reference  to  the 
subject  of  the  act  or  some  feature  of  it,  the  intention  is  the 
guide  as  deduced  from  a  consideration  of  all  its  parts  and  the 
system  of  which  it  forms  a  part.  Subsidiary  provisions  are  not 
always  co-extensive  with  those  which  define  or  indicate  its  full 
purpose.  In  Bank  of  United  States  v.  McKenzie,'  the  question 
was  whether  corporations  as  plaintiffs  were  within  the  fourth 
section  of  the  act  of  limitations  of  the  state  of  Virginia;  the 
proviso  suspending  its  operation  as  to  certain  classes  of  per- 
sons in  certain  conditions  being  inapplicable;  they  were  not 
liable  to  any  of  the  disabilities  which  were  enumerated  in  the 
twelfth  section,  not  even  that  of  being  beyond  seas.  Section 
4  was  held  applicable,  and  IMarshall,  C.  J.,  said,  speaking  of 
the  words  of  section  4 :  "  They  do  not  take  into  vicAv  the  char- 
acter of  the  plaintiff  but  of  the  action.  In  construing  this 
section  it  is  entirel}^  unimportant  by  whom  the  suit  is  brought. 
The  action  is  clearly  barred  by  the  length  of  time,  whoever 
may  be  the  plaintiff.  The  plain  words  of  the  statute  are  de- 
cisive. ]^or  does  any  reason  or  justice  or  policy  exist  Avhich 
should  take  a  corporation  out  of  these  words.  The  legisla- 
ture could  have  no  motive  for  limiting  the  time  within  which 
a  suit  should  be  brought  by  an  individual  which  does  not 
apply  with  exact  force  to  a  suit  brought  by  a  corporation. 
We  find  no  words  in  the  exception  indicating  an  intention  to 
make  it  co-extensive  with  the  enacting  clause,  or  to  limit  the 
general  provision  of  the  enacting  clause  to  such  general  classes 
of  persons  as  may  comprehend  individuals  for  whom  justice 
would  require  the  saving  of  rights  which  are  found  in  the 
twelfth  section.  An  exception  is  not  co-extensive  with  the 
provision  from  which  it  forms  the  exception ;  and  if  a  corpo- 
ration cannot  be  brought  within  any  of  the  savings  of  the 
statute,  the  inference  is  not  that  the  corporation  is  withdrawn 
from  the  enacting  clause,  but  that  the  legislature  did  not  think 
it  a  being  whose  right  to  sue  required  a  prolongation  beyond 
the  legal  time  given  for  suitors  generally."  It  is  here  in- 
tended only  to  illustrate  the  flexibility  of  words  as  they  are 
treated  for  the  purpose  of  harmonizing  one  part  of  an  act 

113;  Wilson  v.  Nightingala  8  Q.  B.  works,  7  B.  &  C.  314;  Williams  v. 
1035.    Compare  Cortis  v.  Kent  Water-    McDonal,  3  Pin.  (Wis.)  331. 

12  Brock.  393. 


292 


PAETS    OF   A   STATUTE    AND   THEIR   RELATIONS. 


Tvitli  another  and  with  its  general  purpose.  Like  considera- 
tions will  require  a  statute  to  be  construed  as  a  whole  with 
reference  to  the  entire  system  of  which  it  forms  a  part.^  The 
inquiry  to  ascertain  the  intention  of  an  act  with  reference  to 
other  legislation,  and,  when  dubious,  to  extraneous  facts  and 
the  general  canons  of  construction,  are  discussed  further  on. 

§  220.  Efifect  of  total  couflict  between  two  parts  of  an 
act.—  Where  one  part  of  an  act  is  in  conflict  with  another, 
and  they  cannot  be  brought  into  harmony  by  any  rule  of  con- 
struction ;  where  they  are  of  equal  scope,  and  there  is  a  point- 
blank  repugnancy,  so  that  if  one  operates  at  all  it  will  neces- 
sarily antagonize  any  effect  of  the  other,  what  is  the  conse- 
quence? Both  are  void,  by  one  neutralizing  the  other,  on  the 
ground  that  the  legislature  uno  flatu  have  enacted  a  contra- 
diction ;  or  one,  for  being  earlier  or  later  in  position,  must  be 
deemed  to  render  the  other  nugatory,  or  repeal  it.  There  are 
several  direct  adjudications  that  the  provision  which  is  latest 
in  position  repeals  the  other.^    Being  later  in  position,  the 


1  McDougald  v.  Dougherty,  14  Ga, 
674 

2  Packer  v.  Sunbury,  etc.  R  R.  Co. 
19  Pa,  St.  211 ;  Ryan  v.  State,  5  Neb. 
276,  282;  Gibbons  v.  Brittenum,  56 
Miss.  232;  Harrington  v.  Rochester, 
10  Wend.  547, 553 ;  Commercial  Bank 
V.  Chambers,  8  Sm.  &  M.  9 ;  Brown  v. 
County  Commissioners,  21  Pa.  St.  37, 
42 ;  Quick  v.  "Whitewater  Township,  7 
Ind-  570 ;  Albertson  v.  State,  9  Neb. 
429 ;  Sams  t.  King,  18  Fla,  557 ;  Bran- 
agan  v.  Dulaney,  8  Colo.  408 ;  Gee  v. 
Thompson,  11  La.  Ann.  657 ;  Peet  v. 
Nalle,  30  id.  Pt.  II.,  949 ;  Hamilton  v. 
Buxton,  6  Ark  24 ;  ante,  %  170.  Farm- 
ers' Bank  v.  Hale,  59  N.  Y.  53,  upon  this 
subject,  is  an  interestiag  case.  In 
1870  the  legislature  enacted  a  statute 
which  was  held  by  a  majority  of  the 
court  to  be  self -contradictory.  The 
first  section  prescribed  the  rate  of  in- 
terest that  banking  associations,  or- 
ganized under  the  laws  of  the  state, 
might  contract  for  and  take;  and 
provided  that  the  penalty  for  usmy 


should  be  forfeiture  of  twice  the 
amount  of  the  interest  paid,  substan- 
tially re-enacting  the  regulations  and 
penalties  prescribed  ui  the  national 
bank  act.  The  next  section  is :  "  It 
is  hereby  declared  that  the  true  in- 
tent and  meaning  of  this  act  is  to 
place  the  banking  associations,  organ- 
ized and  doing  business  [under  the 
laws  of  this  state],  on  an  equahty,  in 
the  particulars  in  this  act  refen-ed  to, 
with  the  national  banks  organized 
under  the  act  of  congress.  And  all 
acts  and  parts  of  acts  iaconsistent 
with  the  provisions  hereof  are  hereby 
repealed."  In  1873  the  com-t  had 
held  that  the  national  bank  act,  in 
these  particvilars,  did  not  operate  in 
that  state,  and  that  the  general  laws 
of  the  state,  prescribing  a  loss  of  the 
debt  as  a  penalty  for  usuiy,  applied 
to  those  banks.  Fkst  Nat.  Bk.  of 
WliitehaU  v.  Lamb,  50  N.  Y.  95.  It 
was  therefore  held  in  the  case  under 
review  that  the  second  section  de- 
clared an  intent  directly  opposed  to 


PAKTS    OF   A   STATUTE    AJXD   THELR   RELATIONS.  293 

prevailing  provision  is  deemed  a  later  expression  of  the  legis- 
lative will.  This  rule  and  the  reason  for  it  have  been  criti- 
cised/ because  all  the  provisions  of  an  act  being  adopted  at 
the  same  time,  there  is  no  priority  in  point  of  time  on  account 
of  their  relative  positions  in  the  statute.  This  is  strictly  true ; 
but,  in  the  reading  of  a  bill,  matter  near  the  close  may  be 
presumed  to  receive  the  last  consideration,  and,  if  assented  to, 
is  a  later  conclusion.  Slight  circumstances  preponderate  when 
a  question  is  at  equipoise.  It  receives  some  support  fi'om  the 
analogous  rule  applicable  in  the  construction  of  wills,-  but  it  is 
not  even  as  to  that  subject  carried  to  its  full  logical  extent ; 
for  if  one  fund  is  bequeathed  severally  to  two  persons,  they 
will  both  take  by  equal  shares.^ 

§  221.  By  a  singular  caprice  of  the  law  a  saving  clause  to- 
tally repugnant  to  the  purview  is  rejected,  while  a  proviso 
directly  repugnant  to  the  main  body  of  the  act  repeals  the  pur- 
view, as  it  is  said  to  speak  the  last  intention  of  the  makers.* 
In  the  case  of  private  writings  other  than  wills,  as  deeds  or 
other  instruments  inter  vivos,  the  earher  repugnant  part  pre- 
vails,^ and  the  same  seems  to  be  the  rule  in  legislative  grants.* 
Analogies,  therefore,  fail  to  furnish  any  consistent  rule,  and 
that  which  is  sanctioned  by  adjudications  is  perhaps  wise, 
since  some  rule  should  exist  for  such  rare  cases ;  it  is  a  practi- 
cable solution,  and  there  is  a  spice  of  reasoning  to  support  it. 

Such  a  contradiction  will  not  be  recognized  so  as  to  give 
arbitrary  repealing  effect  to  a  provision  later  in  position  where 

the  express  provisions  of  the  first  sec-  2  1  Redf.  on  Wills,  443,  451 ;  2  Par. 

tion.    Church,  C.  J.,  said:   "When  on  Cont  *ol3. 

different  constructions  may  be  put  ^Ridout  v.  Pain,  3  Atk.  493;   Mo- 

upon  an  act,  one  of  which  will  ac-  Guue    v.   Evans,    5  Ired.   Eq.    269; 

complish  the  purpose  of  the  legisla-  Jones'  Appeal,  3  Grant,  169. 

ture  and  the  other  render  it  nugatoiy,  *  Attorney-General  v.  Chelsea  Water 

the  former  should  be  adopted ;  but  Works  Co.,  Fitzgibbons,  195 ;  Rex  v. 

when  the  provisions  of  an  act  are  Justices,  2  B.  &  Ad.  818. 

such  that  to  make  it  operative  would  »  2  Par.  on  Cont  *513 ;  Co.  Litt  112 ; 

violate  the  declared  meanmg  of  the  FurnivaU  v.  Coombes,  5  JL  &  G.  786. 

legislatm-e,  courts  should  be  astute  in  <>  Fore  v.   WUhanis,   35  I\liss.   533. 

construing  it  moperative."    The  sec-  See  Dugan  v.  Bridge  Co.  27  Pa.  St 

end  section  was  ti-eated  as  in  the  nat-  303 ;  Mason  v.  Boom  Co.  3  Wall.  Jr. 

ure  of  a  proviso,  and  controlling  tlie  252  ;  ]\Iattor  of  Second  Ave.  Church, 

previous  provisions.  66  N.  Y.  395. 
JBish.  W.  L.§§63-65. 


294  PARTS    OF    A    STATUTE    AJSTD    THEIR    RELATIONS. 

it  is  of  dubious  import,  but  only  wbere  the  contradiction  is 
clear  and  explicit.^  The  rule  may  be  reversed  and  effect  given 
to  the  clause  or  provision  standing  first  in  the  act  when  it  is 
more  in  accord  with  the  general  purpose  of  the  act,  construed 
in  the  light  and  with  the  aid  of  all  other  statutes  in  pari  ma- 
teria? "  The  true  principle  undoubtedly  is  that  the  sound  in- 
terpretation and  meaning  of  the  statute,  on  a  view  of  the  en- 
acting clause,  saving  clause  and  proviso,  taken  and  construed 
together,  is  to  prevail.  If  the  principal  object  of  the  act  can 
be  accomplished  and  stand  under  the  restriction  of  the  saving 
clause  or  proviso,  the  same  is  not  to  be  held  void  for  repug- 
nancy.'" * 

§  222.  Provisos,  exceptions  and  saving  clauses. —  It  has 
not  been  an  unfrequent  mode  of  legislation  to  frame  an  act  with 
general  language  in  the  enacting  clause,  and  to  restrict  its 
operation  by  a  proviso.  It  is  often  found  difficult  to  limit  the 
language  in  the  enacting  clause  so  as  to  admit  every  excep- 
tion or  limitation  designed  to  be  introduced  into  the  section 
in  its  finished  state.*  Provisos  and  exceptions  are  similar ;  in- 
tended to  restrain  the  enacting  clause ;  to  except  something 
which  would  otherwise  be  within  it,  or  in  some  manner  to 
modify  it.'  A  proviso  is  something  engrafted  upon  a  preced- 
ing enactment,  and  is  legitimately  used  for  the  purpose  of 
taking  special  cases  out  of  a  general  class,  or  to  guard  against 
misinterpretation.^  The  general  intent  will  be  controlled  by 
the  particular  intent  subsequently  expressed.'^    "Where  a  stat- 

1  State  V.  WilUams,  8  IncL  191 ;  rey,  L.  R.  5  Q.  B.  Div.  170 ;  McRae  v. 
Mason  v.  Boom  Co.  3  Wall  Jr.  252.        Holcomb,    46  Ark.    306 ;  Stowell  v. 

2  Sams  V.  King,  18  Fla.  557 ;  Kan.     Zouch,  1  Plowd.  361. 

Pac.  Ry.  Co.  v.  Wyandotte,  16  Kan.  6  Savings  Bank  v.  United  States,  19 

587 ;  Folmer's  Appeal,  87  Pa.  St  133 ;  Wall.  227 ;  Minis  v.  United  States,  15 

Renner  v.  Bennett,  21  Ohio  St.  431.  Pet  445 ;  Bank  for  Savings  v.  The 

See  Savings  Institution  v.  Makin,  23  Collector,   3  Wall.  495 ;  Pott.   Dwar. 

Me.  360.  118 ;  Boon  v.  Juhet  2  IlL  258. 

3 1  Kent's  Com.  463,  note  6.  '  Ihmsen  v.  Monongahela  Nav.  Co. 

4  Savings  Institution  v.  Makin,  23  32  Pa.   St  152;  State  v.  Goetze,  22 

Ma  360.  Wis.  363 ;  Gregory's  Case,  6  Co.  195; 

sWayman  v.  Southard,  10  Wheat  Foster's    Case,    11  Co.   566;    Rex  v. 

1 ;  Pearce  v.  Bank  of  Mobile,  33  Ala.  Taunton  St  James,  9  B.  &  C.  831, 

693 ;  Rawls  v.  Kennedy,  23  id.  240 ;  836 ;  Minis  v.  United  States,  15  Pet 

Vorhees  v.  Bank  of  United  States,  10  445. 
Pet  449 ;  Mullins  v.  Treasurer  of  Sui"- 


PARTS   OF   A    STATUTE   AND   THEIR   RELATIONS.  295 

ute  forbids  the  doing  of  an  act  except  upon  a  condition  pre- 
cedent, as  obtaining  a  license,  and  it  is  impossible  to  perform 
the  condition,  as  if  the  act  provides  that  no  license  shall  be 
granted,  the  condition  is  valid  and  the  prohibition  absolute.' 
A  proviso  is  so  identiiied  with  the  text  of  a  statute  which  it 
quahfies  that  if  such  enacting  part  is  repealed  by  a  subsequent 
statute  repugnant  to  it,  the  proviso  will  fall  also.-  The  effect 
of  an  exception  which  is  a  part  of  the  enacting  clause  and  is 
of  general  application  is  simply  to  restrict  it  as  to  the  matter 
excepted.  It  operates  for  this  purpose  co-extensively  with  the 
matter  which  precedes.  Hence  in  actions  based  on  the  statute 
the  pleadings  must  negative  the  exception.'  It  is  not  universally 
so  extensive  as  the  provision  w^hich  it  qualifies,  as  to  subject- 
matter,  for  its  purpose  may  be,  and  usually  is,  to  reduce  the 
subject-matter  by  withdrawing  a  part  from  the  operation  of 
the  general  words,  or  to  give  them  a  qualified  operation  merely 
as  to  the  matter  of  the  exception.*  Where  there  is  a  prohibi- 
tion, grant  or  regulation  in  general  words,  and  a  saving  of  par- 
ticular things,  there  is  a  strong  implication  that  what  is  excepted 
would  have  been  within  the  purview  if  it  had  not  been  ex- 
cepted ;  and  thus  the  purview  may  be  made  more  comprehen- 
sive than  it  would  otherwise  have  been.^  Thus,  if  there  be  a 
grant  of  aU  trees  on  a  piece  of  land,  which,  if  nothing  more 
had  been  said,  would  only  have  embraced  forest  trees,  but 
there  is  an  exception  of  ap])le  trees,  other  fruit  trees,  as  peach 
and  pear  trees,  will  pass.''  But  it  is  a  matter  of  common  ex- 
perience that  savings  and  exceptions  are  often  introduced  from 
abundant  and  even  excessive  caution.  And  it  would  some- 
times pervert  the  intention  of  the  author  of  the  writing,  if  every 
other  thing  of  the  same  general  tenor  as  that  excepted  should 
be  regarded  as  embraced  in  the  general  words.  The  rule, 
therefore,  should  be  so  defined  as  to  avoid  this  perversion,  and 
be  limited  to  the  cases  where  it  is  equivocal  upon  the  general 

1  State  V.  Douglass,  5  Sneod,  608.  •«  Bank  of  U.   S.   v.   McKenzie,  2 

2  Church  V.  Stadler.  16  Ind.  463.  Brock.  393. 

s  Vavasour  v.  Ornirod,  6  B.  &  C.  » Gibbons  v.  Ogden,  9  Wlieat  191 ; 

430;  People  v.   Berbemch,  11  How.  Brown     v.    Maiyland,    13    id.    438; 

Pr.  333 ;  Spieres  v.  Parker,  1  T.  R.  141 ;  United  States  v.  Gilmore,  8  Wall  330. 

Hoffman  v.  Petei-s,  51  N.  J.  L.  244 ;  6  vin.  Abr.  Grants,  H.  13,  p.  61. 
Blasdell  v.  State,  5  Tex.  A  pp.  263. 


296  PAKTS    OF    A    STATUTE    AXD    THEIK   RELATIONS. 

lancruage  whether  a  particular  thing  is  embraced ;  then  the  ex- 
ception of  another  thing  of  a  similar  kind  will  show  that  the 
first  was  intended  to  be  included.^ 

§  223.  The  natural  and  appropriate  office  of  the  proviso  be- 
ing to  restrain  or  qualify  some  preceding  matter,  it  should  be 
confined  to  what  precedes  it  unless  it  clearly  appears  to  have 
been  intended  to  apply  to  some  other  matter.-  It  is  to  be  con- 
strued in  connection  with  the  section  of  which  it  forms  a  part, 
and  it  is  substantially  an  exception.^*  If  it  be  a  proviso  to  a 
particular  section,  it  does  not  apply  to  others  unless  plainly  in- 
tended.^ It  should  be  construed  with  reference  to  the  imme- 
diately preceding  parts  of  the  clause  to  which  it  is  attached.* 
In  other  words,  the  proviso  will  be  so  restricted  in  the  absence 
of  anything  in  its  terms,  or  the  subject  it  deals  with,  evincing 
an  intention  to  give  it  a  broader  effect."  It  is  not  an  arbitrary 
rule  to  be  enforced  at  all  events,  but  is  based  on  the  presump- 
tion that  the  meaning  of  the  law-maker  is  thereby  reached.' 
If  irrelevant  to  the  enacting  part  and  meaningless  with  refer- 
ence thereto,  it  has  been  rejected.^  And  it  was  remarked  in 
argument  in  Ihmsen  v.  Monongahela  Navigation  Co.  :^  "If 
it  was  not  intended  to  restrain  the  general  clause  it  was  a 
nullity."  This  is  taking  a  proviso  very  strictly.  The  intention 
of  the  law-maker,  if  plainly  expressed,  must  have  the  force  of 
law,  though  it  may  be  in  the  form  of  a  proviso ;  the  intention 
expressed  is  ]3aramount  to  form.'''    The  form,  however,  is  in- 

1  Tinkham  v.  Tapscott,  17  N,  Y.  ^  United  States  v.  Babbit,  1  Black, 
152.  55. 

2  Pearce  v.  Bank  of  Mobile,  33  Ala.  '  Friedman  v.  Sullivan,  48  Ark.  213. 
693 ;   Bank  for  Savings  v.  The  Col-  See  cases  in  last  note. 

lector,  3  Wall  495 ;   Savings  Bank  v.  8  Mullius  v.  Treasurer  of  Surrey,  L. 

United  States,  19  WalL  227.  R.  5  Q.  B.  Div.  170. 

3  Id.  9  32  Pa.  St.  153. 

4  Callaway  v.  Harding,  23  Gratt  ">  State  v.  Eskridgo,  1  Swan,  413; 
547.  Beaumont  v.  Irwin,  2  Sneed,  291, 302. 

5  Partington,  Ex  parte,  6  Q.  B.  649,  See  Foster  v.  Pritchard,  2  H.  &  N. 
653 ;  Spring  v.  Collector,  78  111.  101 ;  151 ;  Gibbons  v.  Ogden,  9^^Tieat  191 ; 
Rex  V.  Newark-upon-Trent,  3  B.  &  C.  Farmers'  Bank  v.  Hale,  59  N.  Y.  53 ; 
71 ;  Lehigh  Co.  v.  Meyer,  102  Pa.  St  Chapin  v.  Cruseu,  31  Wis.  209 ; 
479 ;  Gushing  v.  Worrick,  9  Gray,  McDermut  v.  LoriUard,  1  Edw.  CIl 
382.  See  United  States  v.  Babbit,  1  273,  276 ;  State  v.  Harkness,  1  Brev. 
Black,  55;  Mechanics',  etc.  Bank's  276;  Ayers  v.  Knox,  7  Mass.  306; 
Appeal,  31  Conn.  63 ;  Rogers  v.  Vass,  6  State  v.  King,  44  Mo.  283 ;  Smith  v. 
Iowa,  403.  People,  47  N.  Y.  330 ;  Castner  v.  Wal- 


PAKTS   OF    A    STATUTE   AJND   THEIR   RELATIONS.  297 

lluential  in  the  iiiquiry  for  the  intent.  The  proper  function  of  a 
proviso  being  to  limit  the  language  of  the  legislature,  it  will 
not  be  deemed  intended  from  doubtful  words  to  enlarge  or 
extend  the  act  or  the  provision  on  which  it  is  engrafted.'  Where 
it  follows  and  restricts  an  enacting  clause  generally  in  its  scope 
and  language,  it  is  to  be  strictly  construed  and  limited  to  ob- 
jects fairly  within  its  terms.-  To  a  statute  allowing  receivers 
of  public  moneys  one  per  cent,  on  the  money  received,  as  a 
compensation  for  cleric  hire,  receiving,  safe  keeping  and  trans- 
mitting such  money,  was  added  this  proviso :  "  that  the  whole 
amount  which  any  receiver  of  public  moneys  shall  receive  under 
the  provisions  of  this  act  shall  not  exceed,  for  any  one  year, 
the  sum  of  §3,000."  Applying  a  strict  construction,  it  was 
held  that  this  proviso  limited  the  amount  which  each  individual 
receiver  was  annually  entitled  to,  and  not  the  amount  payable 
annually  to  the  incumbents  of  the  office,  whether  one  or  more. 
Story,  J.,  said  he  was  led  to  the  general  rule  of  law  which  has 
always  prevailed  and  become  consecrated  as  ahnost  a  maxim 
in  the  interpretation  of  statutes,  that  when  the  enacting  clause 
is  general  in  its  language  and  objects,  and  a  proviso  is  after- 
wards introduced,  that  proviso  is  strictly  construed,  and  takes 
no  case  out  of  the  enacting  clause  which  does  not  fall  fully 
within  its  terms."  It  should  be  within  its  letter  and  purpose.^ 
The  general  law  of  Illinois  making  exemption  of  certain  amounts 
of  personal  property  from  execution  in  favor  of  debtors  was 
qualified  by  a  provision  that  "  no  personal  property  shaU  be 
exempted  •  •  •  when  the  debt  or  judgment  is  for  the 
wages  of  any  laborer  or  servant."  The  court  said  "  it  would 
seem  that  the  same  policy  which  dictates  a  liberal  construc- 
tion of  the  statute  in  furtherance  of  its  general  beneficial 
purpose  would  necessitate  a  restricted  construction  of  an  ex- 
ception by  which  its  operation  is  limited  and  abridged ; "  but, 
independent  of  that  consideration,  the  court  held  that  pro^'isos 

rod,  83  lU.  171,  179 ;  Carroll  v.  State,  50  Cal.  420 ;  Butts  v.  RaUroad  Co.  C3 

58  Ala,  396 ;  Commissioners  v.  Keith  Miss.  462 ;  McRae  v.  Holcomb,  46  Ark. 

3  Pa  St.  218.  306 ;   Loolver  v.  Davis,  47  Mo.   140 ; 

1  Re  Webb,  24  How.  Pr.  247.  Mayor,  etc.  v.  ]\lagTuder,  34  Md.  381 ; 

2  Bragg  V.  Clax-k,  50  Ala,  363 ;  Epps  Soutligate  v.  Goldthwaite,  1  Bailey, 
V.  Epps,  17  lU.  App.  196 ;  Roberts  v.  367. 

Yarboro,  41  Tex.  449 ;  Willingham  v.  3  United  States  v.  Dickson,  15  Pet 
Smith,  48  Ga.  580 ;  Blood  v.  Fairbanks,    141. 


298  PARTS    OF   A    STATUTE    AND   THEIR   RELATIONS. 

sliould  be  strictly  construed,  and  accordingly  it  should  be  con- 
fined to  those  popularly  known  as  laborers  and  servants,  and  did 
not  include  book-keepers,  managers  and  other  like  employees, 
eno-ao-ed  for  skill  and  knowledge.^  The  erection  of  certain  dams 
being  authorized,  the  act  provided  for  compensation  for  any 
damages,  direct  or  consequential,  which  might  be  occasioned 
to  private  property  by  the  dams.  A  more  specific  provision  in 
the  same  section  was  that  the  company  authorized  to  maintain 
the  dams  should  be  liable  for  all  consequential  damages  result- 
ing to  the  owner  or  owners  of  real  property  situate  upon 
either  side  of  the  improvement.  The  cornet  remarked  that 
"  there  was  no  necessity  for  a  proviso  unless  to  restrain  terms 
so  general  as  to  embrace  injuries  to  every  species  of  property, 
wherever  situated,  that  might  sustain  damages  in  consequence 
of  the  dams."  ^ 

§  221.  The  adjudications  are  instructive  upon  the  exceptions 
to  general  statutes,  extensively  adopted,  abohshing  objections 
to  the  competency  of  witnesses.  Where  the  general  aflBrma- 
tive  provision  admits  a  witness,  he  can  only  be  excluded  where 
he  is  plainly  included  in  the  terms  of  the  exception.*  The  ob- 
jection of  being  a  party  or  interested  being  removed,  an  ex- 
ception excluding  a  party  in  actions  by  or  against  the  executor 
or  administrator  of  the  opposite  party  will  not  apply  to  a  suit 
by  a  surviving  partner.* 

1  Epps  V.  Epps,  17  IlL  App.  196.  were  parties  to  the  issue,  that  is,  par- 

2  Ihmsen  v.  Monongahela  Nav.  Co.  ties  to  the  record ;  and  those  inter- 
33  Pa.  St.  153.  ested  in  the  issue  to  be  ti-ied,  that  is, 

3  Roberts  v.  Yarboro,  41  Tex.  449 ;  those  wlio,  although  not  parties  to 
Bragg  V.  Clark,  50  Ala.  363 ;  Blood  v.  the  record,  held  such  relations  to  the 
Fau-banks,  50  CaL  420 ;  McRae  v.  Hoi-  issue  that  they  would  lose  or  gain  by 
comb,  46  Ark.  306 ;  Looker  v.  Pavis,  the  dkect  legal  operation  and  effect 
47  Mo.  140.  of  the  judgment     A  witness  may  be 

4  Bragg  V.  Clark,  50  Ala.  363 ;  Rob-  interested  in  the  issue  without  being 
erts  V.  Yarboro,  41  Tex.  449 ;  Bird  v.  a  party  thereto  —  a  distinction  which 
Jones,  37  Ark.  195 ;  Nolen  v.  Harden,  seems  to  have  been  recognized  in  all 
43  id.  307 ;  WasseU  v.  Armstrong,  35  the  statutes  to  wliich  reference  has 
i.i  247.  In  Potter  v.  National  Bank,  been  made.  But  whether  a  party  to 
103  U.  S.  163,  Harlan,  J.,  referring  to  or  only  interested  in  the  issue,  the 
section  858  of  the  Revised  Statutes  of  witness  is  not  excluded  in  the  com-ts 
the  United  States,  said:  "The  first  of  the  United  States  upon  either 
clause  of  that  section  shows  that  ground,  except  that  in  actions  in 
there  was  in  the  mind  of  congress  wliich  the  judgment  may  be  rendered 
two  classes  of  witnesses, —  those  who  for  or  against  an  executor,  ad  minis- 


PARTS   OF    A    STATUTE    AND   THEIR   KELATI0N8.  299 

§  225.  A  saving  clause  is,  like  a  proviso,  an  exemption  of  a 
special  tiling  out  of  the  general  things  mentioned  in  the  stat- 
tute.'  Its  name  implies  such  exemption  to  preserve  from  loss 
or  destruction,  and  such  is  its  use.  It  is  generally  employed 
to  restrict  repealing  acts;  to  continue  repealed  acts  in  force 
as  to  existing  powers,  inchoate  rights,  penalties  incurred,  and 
pending  proceedings,  depending  on  the  repealed  statute.-  An 
absolute  repeal  puts  an  end  to  such  rights,  powers  and  pro- 
ceedings, and  discharges  such  penalties.^  To  preserve  them  to 
any  extent  or  for  any  purpose  requires  a  special  provision  in 
the  repcaUng  act  or  existing  statute  having  a  saving  effect. 
When  such  saving  is  included  in  the  repealing  statute  it  usu- 
ally follows  the  repealing  clause.  The  same  reasons  which 
exist  for  a  strict  construction  of  a  proviso  apply  to  a  saving 
clause  where  there  is  an  express  repeal,  and  the  saving  clause 
is  intended  to  restrict  it.  The  special  intent  in  the  saving 
clause  prevails  over  the  general  intent  in  the  repeal ;  but  the 
repugnance  will  be  reduced  to  a  minimum  in  civil  cases  by 
construction  of  the  former.  The  saving  clause,  however,  is  to 
have  a  reasonable  construction  to  carry  out  the  just  and  obvious 
purpose  of  the  law-maker.*    In  an  act  repeahng  a  temporary 

ti-ator  or  guardian,  no  party  to  tlie  Governor  v.  Howard,  1  Murphy  (N.C.), 
action  can  testify  against  the  other  as  465;  Commonwealth  v.  Kimball,  21 
to  any  ti-ansaction  with,  or  statement  Pick.  373 ;  Smith  v.  Banker,  3  How. 
by,  the  testator,  intestate  or  ward,  Pr.  142;  United  States  v.  Helen,  6 
unless  called  to  testify  thereto  by  the  Cranch,  203 ;  People  v.  GiU,  7  C  al. 
opposite  party,  or  required  to  testify  356 ;  Commonwealth  v.  Bennett,  108 
by  the  com-t  The  proviso  of  section  Mass.  30 ;  Rex  v.  Justices,  3  BmT. 
858  excludes  only  one  of  the  classes  1456;  Cochran  v.  Taylor,  13  Ohio  St 
described  in  the  first  clause, —  those  382 ;  United  States  v.  Kohnstamm,  5 
who  are  technically  parties  to  the  Blatchf .  222 ;  Commonwealth  v.  Ed- 
issue  to  be  tried, —  and  we  are  not  at  wards,  4  Gray,  1 ;  Files  v.  Fidler,  44 
hberty  to  suppose  that  congress  in-  Ark.  273 ;  Gilleland  v.  Schuyler,  9 
tended  the  word  'party,'  as  used  in  Kan.  569;  Beatty  v.  People,  6  Colo, 
that  proviso,  to  include  both  those  538;  Harris  v.  Townshend,  56  Vt. 
who,    according    to  the   established  716. 

rules  of  pleading  and  evidence,  are  '  Ante,  §g  162-166 ;  and  see  Bish. 

parties  to  the  issue,  and  those  who,  W.  L.  §§  163,  168,  176,  177,  180. 

not  being  parties,  have  an  interest  in  •*  Toutill  v.  Douglas,  33  L.  J.  Q.  B. 

the  result  of  that  issue."  66 ;  Linton  v.  Blakeney  Joint  Co-op. 

1  Dwar.  Stat.  (2d  ed.)  513.  Society.  3  H.  &  C.  853 :  State  v.  Doug- 

2  Commonwealth  v.  Marshall,  11  lass,  33  N.  J.  L.  3G3 ;  State  v.  Kelley, 
Pick.  350 ;  Taylor  v.  State,  7  Blackf.  3 1  N.  J.  L.  75 ;  McGavisk  v.  State,  icL 
93;  The  Ii-resistible,  7  Wheat  551 ;  509 ;  State  v.  Ti-enton,  38  id.  64 ;  Cum- 


300  PAETS   OF   A   STATUTE   AND   THEIK   KELATIONS. 

statute,  a  saving  will  only  restrict  the  repeal  so  that  persons 
who  had  offended  against  the  act  repealed  can  be  prosecuted, 
convicted  and  punished  as  though  there  were  no  repeal.  The 
mere  saving  does  not  create  any  power  to  punish,  but  only  to 
preserve  that  which  before  existed.^  A  territorial  act  of  1839 
in  Iowa  defined  the  crime  of  murder  and  prescribed  the  penalty. 
An  act  of  1843  repealed  that  of  1839,  with  a  proviso  that  any 
person  who  had  committed  any  crime  punishable  by  it  should 
be  prosecuted  and  punished  according  to  it,  the  same  as  if  the 
repealing  act  had  not  been  passed.  The  code  of  1851  repealed 
all  prior  acts  with  the  saving  that  crimes  committed  under  any 
act  repealed  by  it  should  not  be  affected  by  it.  It  was  held 
that  there  was  thereafter  no  law  in  force  for  punishing  the 
offense  of  murder  committed  in  1840 ;  that  the  code  of  1851 
only  repealed  the  act  of  1843,  and  did  not  repeal  the  act  of 
1839,  for  it  had  been  repealed  before;  hence  the  saving  in  the 
code  authorized  no  punishment  for  crimes  committed  against 
the  act  of  1839.2 

In  Downs  v.  The  Town  of  Iluntington,^  the  court  said  it 
would  give  a  saving  clause  a  very  Uberal  construction  to  save 
a  meritorious  verdict  which  depended  on  a  statute,  and  had 
not  been  reported  when  the  repeal  of  the  statute  took  effect. 
"  A  suit  or  proceeding  "  in  a  saving  clause  has  been  held  to  in- 

monwealth  v.  Pointer,  5  Biish,  301 ;  cause  it  was  in  violation  of  the  law 

Titcomb  v.  Insurance  Co.  8  Mass.  328 ;  of  1839,  which,  as  to  past  offenses, 

Isliam*  V.   Bennington    Iron    Co.    19  was    expressly   continued    in  force. 

Vt  230.  For  such  offenses  it  was  just  as  much 

1  The  Irresistible,  7  Wlieat,  551.  the  law  of  the  land  as  was  the  law  of 

2  Jones  V.  State,  1  Iowa,  395,  1843  for  ah  subsequent  offenses.  Our 
Wright,  C.  J.,  thus  expressed  his  dis-  courts,  in  the  administi'ation  of  it, 
sent :  "  I  adnut  that  but  for  the  sav-  and  in  punishing  offenses  committed 
ing  clause  contained  in  section  48  of  thereimder,  must  necessarily  have  so 
the  act  of  1843,  there  would  have  re-  treated  it.  .  .  .  The  power  to 
mained  no  power  to  punish  for  tliis  prosecute,  convict  and  punish  offend- 
offense.  The  provision  there  made  ers  against  the  act  repealed,  remains 
as  to  past  offenses,  however,  I  tliink,  as  perfect  as  if  the  repeahng  act  had 
was  substantially  to  that  extent  a  never  been  passed.  There  was  no 
re-enactment  of  the  law  of  1839.  power  to  punish  created  by  the  re- 
Thus,  up  to  the  adoption  of  the  code,  pealmg  act  of  1843,  but  an  express 
it  is  conceded  that  tliis  offense  covUd  preservation  of  a  power  that  before 
have  been  punished.     I  ask  by  what  existed." 

authority,   and   why?    Clearly,   be'       3  jjs  Conn.  588. 


PAETS    OF   A   STATUTE   AND    THEIR   RELATIONS.  3Ul 

elude  an  execution,  because  it  is  the  final  step  in  a  suit.'  An 
appropriation  by  a  city  council  to  meet  the  current  expenses 
of  the  city  was  held  to  be  "  a  proceeding  "  within  the  saving 
of  a  subsecpient  amendment  of  the  charter,  taking  effect  before 
the  appropriation  was  expended,  Hxing  a  hmit  transcended  by 
that  appropriation.^  But  in  Gordon  v.  The  State,'  the  court 
in  expounding  the  general  provision  that  "  the  repeal  of  a  stat- 
ute does  not  .  .  .  affect  any  .  .  .  proceeding  com- 
menced under  and  by  virtue  of  the  statute  repealed,"  held 
that  the  word  proceeding  is  a  technical  word;  that  there- 
fore the  holding  of  an  election  for  permanently  locating  a 
county  seat  was  not  a  proceeding  within  that  provision.  A 
statute  authorized  a  release  to  the  widow  by  the  state  of 
lands  escheated  from  the  deceased  husband  in  consequence  of 
his  death  without  heirs  capable  of  inheriting.  A  saving  clause 
provided  that  nothing  therein  contained  "  shall  affect  any 
right  which  any  other  person  may  lawfully  have  to  said  prop- 
erty." One  having  no  lawful  right  thereto  could  not  invoke 
the  aid  of  that  provision  to  protect  a  possession  wrongfully 
acquired.*  The  provision  in  a  general  repealing  act  that  "  no 
offense  committed  or  penalty  incurred  previous  to  the  time 
when  any  statutory  provision  shall  be  repealed  shall  be  affected 
by  such  repeal,"  was  held  to  have  reference  solely  to  the  laws 
repealed  by  the  act,  and  to  have  no  reference  to  future  legis- 
lation.* 

§  226.  The  legislature  have  the  power  to  pass  a  general  sav- 
ing statute  which  shall  have  the  force  and  effect  to  save  rights 
and  remedies,  except  Avhere  the  repealing  statute  itself  shows 
that  it  was  not  the  intention  of  the  legislature  that  such 
rights  and  remedies  should  be  saved."  Though  one  legislature 
cannot  bind  future  legislatures,  and  each  can  make  its  laws 
prevail  against  any  that  exist,  and  its  intention  in  that  regard 

1  Dobbins  v.  First  Nat  Bank,  112  10  id.  113;  Grace  v.  Donovan,  12 
IlL  553.  Minn.  580 ;  Wilson  v.  Herbert,  41  N. 

2  Beatty  v.  People,  6  Colo.  538.  J.   L.    454 ;    Brisbin   v.    Farmer,   16 

3  4  Kan.  489.  Minn.  215;  Sanders  v.  State,  77  Ind. 
*  White  T.  White.  2  Met  (Ky.)  185.  227;  State  v.  Shaffer,  21  Iowa,  486; 
■^Mongeon  v.  People,  55  N.  Y.  613.  State  v.  Ross,  49  Mo.  416;  Tipton  v. 
6  WiUetts  T.  Jeffries,  o  Kan.  473 ;  Carrigan,  10  III.  App.  318 ;  Fanner  v. 

Gilleland  v.  Schuyler,  9  id.  569 ;  State    People,  77  111.  322, 
V.  Crawford,  11  id.  32 ;  State  V.  Boyle, 


303  PAETS    OF   A    STATUTE   AJH)   THEIK   KELATIOXS. 

will  be  law,^  yet,  as  all  legislatures  are  presumed  to  proceed 
with  a  knowledge  of  existing  laws,  they  may  properly  be 
deemed  to  legislate  with  general  provisions  of  such  a  nature  in 
view.  When  a  repeal  is  enacted  accompanied  by  no  provision 
specially  for  existing  rights  which  would  be  affected  by  it,  it 
should  be  assumed  that  they  are  to  have,  and  were  intended  to 
have,  such  protection  as  other  statutes  will  give  them.  In 
such  cases  the  repealing  act  is  to  be  considered  as  hmited  in 
its  effect  and  operation  in  the  same  manner  and  to  the  same 
extent  as  if  it  contained  the  saving  provided  by  the  general 
law.-  Thus,  where  a  general  provision  existed  that  the  repeal 
of  an  act  shall  not  affect  "a  right  accruing,  accrued,  acquired 
or  established,"  the  subsequent  repeal  of  an  act  allowing  dam- 
ages for  injuries  on  the  highway  did  not  affect  an  existing 
cause  of  action.^  Such  a  saving  has  reference  to  rights,  not 
to  procedure.  Forms  and  proceedings  are  not  contemplated 
further  than  they  may  be  necessary  to  the  preservation  of 
rights.'' 

§  227.  In  penal  acts  provisos  or  exemptions  in  favor  of  the 
accused  are  Hberally  construed  on  the  same  considerations  that 
penal  laws  are  strictly  construed.  As  stated  by  Mr.  Bishop, 
the  doctrine  is :  "  That  in  favor  of  the  accused  person  criminal 
statutes  may  be  either,  according  to  the  form  of  the  provision, 
contracted  or  expanded  by  interpretation  in  their  meanings, 
so  as  to  exempt  from  punishnient  those  who  are  not  within 
their  spirit  and  purpose,  while  at  the  same  time  .  .  .  they 
can  never  be  expanded  against  the  accused  so  as  to  bring 

1  Townsend  v.  Little,  109  U.  S.  504  isted,  and  the  courts  are  quite  free  to 

2  Lakeman  v.  Moore,  32  N.  H.  410,  consider  what  the  subsequent  legisla- 
413.  In  Files  v.  Fuller,  44  Ark.  273,  tui'e  did  in  fact  intend,  or  had  power 
the  com't  thus  remark  upon  such  a  to  do.  StUl  it  has  kept  its  place  on 
general  provision :  "  Tliis  statute  has  the  statute  books,  and  it  is  persuasive 
very  Uttle  importance  save  in.  herme-  at  least  that  subsequent  legislatures 
neutics,  and  has  been  rarely  invoked ;  meant  to  keep  in  harmony  with  it, 
for  no  legislature  has  power  to  pre-  and  in  their  legislation  supposed  it 
scribe  to  the  com-ts  itdes  of  inter-  would  go  without  saying,  that,  when 
pretation,  or  to  fix  for  future  legisla-  a  repeal  was  made,  aU  rights  in  suits 
tures  any  hmits  of  power  as  to  the  pending  under  the  old  statute  would 
effect  of  their  action.  Any  subsequent  be  preserved," 

legislature  might  make  its  repeahng  ^  Harris  v.  Townshend,  56  Vt  716. 
action  operate  in  pending  suits  as  *  Brotherton  v.  Brotherton,  41 
effectually  as  if  no  such  statute  ex-    Iowa,  112. 


PARTS   OF   A    STATUTE    AND   THEIR   RELATIONS.  303 

within  their  penalties  any  person  who  is  not  within  tlieir 
letter."  ^  A  statute  creating  an  offense  was  repealed  Avith 
this  saving  clause :  that  nothing  contained  in  the  repealing  act 
"  shall  affect  any  prosecution  now  pending  or  which  may  be  here- 
after commenced  for  any  public  offense  heretofore  committed," 
etc.  Prior  to  the  repeal  a  prisoner  had  been  convicted  under 
the  statute  and  sentenced  to  be  executed,  but  the  execution 
did  not  take  place  at  the  time  appointed.  In  such  cases,  by 
the  general  law,  the  convict  might  be  brought  before  the  court 
at  an}^  subsequent  time  to  be  resentenced,  and  then  before 
resentencing  the  court  is  to  make  inquiry  whether  any  legal 
reason  exists  against  it.  It  was  held  that  a  repeal  of  the  stat- 
ute defining  the  offense  was  a  legal  reason,  and  not  within  the 
saving.-  Some  additional  cases  bearing  upon  the  subject  of 
saving  in  penal  statutes  are  collected  in  a  note  below.' 

§  228.  The  effect  of  a  total  conflict  between  different  parts 
of  the  same  act  has  been  discussed."  Apparently  this  rule  ap- 
plies to  a  proviso ;  ^  but  it  has  been  held  not  to  apply  to  a  saving 
clause.®  Chancellor  Kent  says  the  reason  of  the  distinction  is 
not  very  apparent,  and  that  it  is  difficult  to  see  why  the  act 
should  be  destroyed  by  the  one  and  not  by  the  other."  Text- 
writers  must  take  the  law  as  they  find  it ;  so  must  the  courts ; 
but  where  an  unmeaning  distinction  has  found  its  way  into 
the  law  for  reasons  which  may  have  existed  and  have  ceased, 
then  the  distinction  ought  to  cease.  Cessante  ratione  legiSj 
cessat  et  ipsa  lex.  It  is  obviously  to  be  the  aim  in  the  construc- 
tion of  the  purview  and  saving  clause  not  to  frustrate  and  de- 
stroy either  but  to  give  them  severally  effect.^ 

§  229.  Interpretation  clauses. —  The  legislature  cannot  au- 
thoritatively declare  what  the  law  is  or  has  been ;  that  is  a 

1  Bish.  W.  L.  §  230.  road  Co.  7  Heisk.  518 ;  Attorney-Gen- 

2  Aaron  v.  State,  40  Ala.  307.  eral   v.   The    Chelsea  Water-works, 

3  Sanders  v.  State,  77  Ind.  227 ;  Peo-  Fitzgib.  195.  See  Jackson  v.  Moye,  33 
pie  V.  GUI,  7  Cal  356 ;  Reg.  v.  Smith,  Ga.  296. 

1  L.   &  C.    131 ;  Commonwealth  v.  *>  Walsingham's  Case,  2  Plowd.  565 ; 

Standard  OU  Co.  101  Pa.  St  119 ;  Hew-  Wood's  Case,  1  Co.  40a,  47a;  1  Kent, 

ard  V.  State,  13  Sm.  &  M.  261;  Dull  Com.  462;  Mitfordv.  Elliott,  8  Taxint 

V.  People,  4  Denio,  91 ;  Sneed  v.  Com-  13, 18. 

monwealth.  6  Dana,  338.  "  1   Kent,  Com.   463 ;   Bish,  W.   L. 

*  Ante,  §  311.  8  65. 

5  Townsend  v.  Brown,  24  N.  J.  L.  ^  Scott  v.  State,  22  Ai'k.  369. 
80 ;  5  Hill,  225,  note  a;  White  v.  RaU- 


30tlr  PAETS   OF   A    STATUTE    AND   THEIR   RELATIONS. 

judicial  function  and  appertains  to  the  courts^  The  legisla- 
ture has  exclusively  the  power  to  make  laAVS,  and  thus  de- 
clare what  the  law  shall  be.-  A  legislative  construction  of  a 
statute  is  entitled  to  consideration,  and  will  often  have  much 
weight.^  In  cases  of  doubt  and  uncertainty  the  solemn  dec- 
laration of  the  legislative  branch  of  the  government,  or  practi- 
cal construction  by  the  executive  department,  gives  a  certain 
sanction,  and  will  be  influential  with  the  courts.*  So  the 
meaning  of  particular  words  in  a  recent  statute  will  have 
weight ;  and  their  meaning  may  be  inferred  from  earlier  stat- 
utes in  which  the  same  words  or  language  has  been  used, 
where  the  intent  was  more  obvious  or  had  been  judicially  es- 
tablished. The  words  of  a  statute,  if  of  common  use,  are  to 
be  taken  in  their  natural,  plain,  obvious  and  ordinary  signifi- 
cation ;  but  if  a  contemporaneous  construction  by  the  legis- 
lature of  the  same  words  can  be  discovered,  it  is  high  evidence 
of  the  sense  intended.'^  Where  the  law-maker  declares  its  own 
intention  in  the  enactment  of  a  particular  law,  or  defines  the 
sense  of  the  words  it  employs  in  a  statute,  it  not  only  exer- 
cises its  legislative  power,  but  exercises  it  with  a  plausible  aim ; 
for  it  professes  to  furnish  aid  to  a  correct  understanding  of 
its  intention,  and  thus  to  facilitate  the  primary  judicial  in- 
quiry in  the  exposition  of  the  law  after  it  is  finished,  promul- 
gated, and  has  gone  into  practical  operation. 

lOgden  V.  Blackledge.   2  Cranch,  Hart   v.    Reynolds,    1    Heisk.    208; 

272 ;  Duncan  v.  State,  7  Humph.  148 ;  Dunlap  v.  Crawford,  2  McCord  Eq. 

Gough  V.  Pratt,  9  Md.  526 ;  Ashley's  171 ;   Pike  v.   Megoun,  44   Mo.  491. 

Case,  4  Pick.  23 ;  Watson  v.  Hoge,  7  See  Aikin  v.  Western  R.  R.  Co.  20 

Yerg.  344;  Wayman  v.  Southard,  10  N.  Y.  370;  Prentiss  v.  Danaher,  20 

"Wlieat.    1;    Governor    v.    Porter,    5  Wis.   311;  State  v.   Oskins,   28  Ind. 

Humph.  165 ;  BiDgham  v.  Supervis-  364 ;  Morgan  v.  Smith,  4  Minn.  104. 

ors,  8  Minn.  441 ;  Tilford  v.  Ramsey,  *  Mathews  v.  Shores,  24    111.    27 ; 

43  i\Io.  410 ;  People  v.  Supervisors,  16  Union  Ins.  Ca  v.  Hoge,  21  Hov?r.  35 ; 

N.  Y.  481;  Dash  v.  Van  Kleeck,  7  Solomon  v.   Commissioners,  41  Ga. 

John.  477.     See  Young  v.  Beardsley,  157 ;  Wright  v.  Forrestal,  65  Wis.  341, 

11  Paige,  93;  Jackson  v.   Phelps,   3  348;  Gough  v.   Dorsey,   27  id.    119; 

Games,    62 ;    Jones    v.    Wootten,    1  Harrington  v.  Smith,  28  id.  43 ;  State 

Harr.  (DeL)  77;   Field  v.   People,   2  v.  Timme,  54  id,  318,  340;  Dean  v. 

Scam.   79 ;  Cotton  v.   Brien,  6  Rob.  Borchsenius,  30  id.  236 ;  post,  §§  320, 

(La.)  115.  631. 

2  Id.  5  Philadelphia,  etc.  R  R.  Co.  v.  Cat- 

3  Philadelphia,    etc.    R.    R   Co.   v.  awissa  R.  R.  Co.  53  Pa.  St.  20.    See 
Catawissa  R  R,  Co.  53  Pa,  St  20 ;  United  States  v.  Gilraore,  8  Wall.  330. 


PARTS    OF    A    STATUTE    AXD    THEIR    RELATIONS.  o05 

§  230.  Such  provisions  have  been  the  subject  of  judicial 
comment  and  criticism.  Lord  Denman  said :  ''  We  cannot  re- 
frain from  expressing  a  serious  doubt  whether  interpretation, 
clauses  will  not  rather  embarrass  the  courts  in  their  decisioii 
than  afford  that  assistance  which  they  contemplate.  For  the 
principles  on  which  they  are  themselves  to  be  interpreted 
may  become  matter  of  controversy;  and  the  application  of 
them  to  particular  cases  ma}^  give  rise  to  endless  doubts."  ^ 

In  Williams  v.  Pritchard,-  Lord  Kenyon  said :  "  It  cannot 
be  contended  that  a  subsequent  act  of  parliament  will  not  con- 
trol the  provisions  of  a  prior  statute,  if  it  were  intended  to 
have  that  operation ;  but  there  are  several  cases  in  the  books 
to  show  that  when  the  intention  of  the  legislature  was  ap- 
parent that  such  subsequent  statute  should  not  have  such  an 
operation  there,  even  though  the  words  of  such  statute,  taken 
strictly  and  grammatically,  would  repeal  a  former  act,  the 
courts  of  law,  judging  for  the  benefit  of  the  subject,  have  held 
that  they  ought  not  to  have  such  a  construction."  Blackburn,  J., 
in  Lindsay  v.  Cundy,^  said,  parenthetically,  that  such  clauses 
are  a  modern  innovation,  and  frequently  do  a  great  deal  of  harm, 
because  they  give  a  non-natural  sense  to  words  which  are 
afterwards  used  in  a  natural  sense,  without  noticing  the  dis- 
tinction. In  that  case  it  was  held  not  necessary  to  foUow 
the  statutory  definition  in  every  instance  where  the  word 
occurred ;  that  the  statute  could  be  satisfied  by  applying  it  to 
the  word  where  there  was  nothing  in  the  context  to  inter- 
pret it  otherwise.  This  seems  to  be  the  effect  of  Queen  v. 
Pearce,^  where  the  court  said  of  such  a  clause  that  it  "  should 
control  w^here  the  words  occur  without  being  accompanied  by 
any  others  tending  to  show  their  meaning ;  or  to  interpret 
words  which  are  ambiguous  or  equivocal,  and  not  so  as  to  dis- 
turb the  meaning  of  such  as  are  plain."  ^ 

1  Regina  v.  Justices,  7  AcL  &  E.  480.  being  a  turnpike  road),  and  any  road, 

2  4  T.  R.  2,  4.  public  bridge  (not    being    a  county 

3  Ia  R.  1  Q.  B.  Div.  358.  bridge),  lane,  foot%vay,  square,  court, 
*  L.  R.  5  Q.  B.  Div.  386.  alley,  etc.  It  was  considered  by  Cot- 
5  In  Nutter  v.  Accrington  Local  ton,  L.  J.,  as  enlarging  and  not  re- 
Board,  L.  R.  4  Q.  B.  Div.  375,  an  act  was  strictive ;  that  it  did  not  provide  that 
in  question  in  which  it  was  provided  it  shovdd  not  include  a  turnpike  road, 
that  the  word  "  street "  should  apply  Bramwell,  L.  J.,  concurring  m  the 
to  and  include  any    highway   (not  view  taken  by  Lord  Justice  Ck)tton, 

20 


306  PAIiTS    OF   A    STATUTE    AND    THEIK   KELATIONS. 

§  231.  Statutoiy  provisions  are  made  in  various  forms  to 
have  effect  specially  in  the  interpretation  of  the  law.  They  are 
distinguishable,  and  all  are  not  construed  and  applied  in  the 
same  manner.  There  is  a  manifest  difference  between  defini- 
tive or  interpretation  clauses  which  are  special,  and  those 
which  are  general ;  the  former  always  having  the  most  control- 
ling effect  where  it  is  obvious  that  the  legislature,  without  mis- 
conception of  the  effect  of  other  legislation,  have  precisely  in 
view  the  particular  words  or  provisions  to  which  the  clause  in 
question  ostensibly  applies.  A  legislative  enactment  based  on 
a  misconception  of  the  law  does  not  jper  se  change  the  law  so  as 
to  make  it  accord  vrith  the  misconception.^  A  provision  which 
is  special  by  pointing  to  a  particular  act  and  declaring  for 
what  definite  purpose  it  was  enacted,  or  defining  certain  words 
or  phrases,  has  the  fullest  effect.  It  is  a  part  of  the  law  and 
must  be  construed  and  applied  accordingly,  and  the  act  will 
have  a  construction,  and  the  words  and  phrases  a  meaning,  in 
harmony  with  the  defining  provisions,  even  though  otherwise 
they  would  have  a  different  effect.^ 

On  the  other  hand,  general  statutory  definitions  and  rules  of 
interpretation  will  apply  when  the  statute  in  question  is  not 
plain,  or,  in  other  words,  does  not  define  and  interpret  itself.' 
"Where  positive  provisions  are  at  variance  with  the  definitions 
which  it  contains,  the  latter,  it  seems,  must  be  considered  as 
modified  by  the  clear  intent  of  the  former  on  the  principle 

said:    "There  is  one  interpretation  interpretation  clause  are  equally  good 

clause  which  says:  'Words  import-  for  either  party." 
ing  the  singular  number  shaU  include        ^  Byrd  v.  State,  57  Miss.  243 ;  Davis 

the  plural  number,  and  that  words  v.  Delpit,  25  id.  445 ;  Farmers'  Bank 

importing  the  plm-al  number  shall  ^-  Hale,  59  N.  Y.  53. 
include  the  smgular  number.'    And,        '  Herold  v.  State,  21  Neb.  50 ;  Smith 

if  that  clause  is  to  be  taken  in  an  ex-  v.  State,  28  Ind.  321 ;  State  v.  Adams, 

elusive  sense,  the  words  m  the  singu-  51  N.  H.  568 ;  State  v.  Canterbuiy,  28 

lai-  number  would  never  mean  the  id.  195 ;  Philadelphia,  etc.  R.  R.  Co. 

singular,  and  the  words  in  the  plural  v.  Catawissa  R.  R.  Co.  53  Pa.  St  20 : 

number  would  never  mean  the  plural.  State  v.  S.  &  S.   Orphan  Home,   37 

It  is  thus,  clearly,  an  additional  m-  Ohio  St.  275 ;  Hankins  v.  People,  106 

terpretation,     I  read  the  words  here  111.  628 ;  Byrd  v.  State,  57  Miss.  243 ; 

[repeating  the  mterpretation  clause].  Nelson  v.  Kerr,  3  T.  &  C.  299. 
Then  it  is  said  that  this  is  a  sti-eet        ^  Queen  v.  Pearce,  L.  R.  5  Q.  B.  386 ; 

And  so  it  is.     But  it  is  also  a  turn-  Midland  R'y  Co.  v.  Ambergate,  etc. 

pike  road-    The  arguments  upon  the  R'y  Co.  10  Hare,  359. 


PAKTS    OF   A    STATUTE    A^•D   TUEIK   EELATIONS.  307 

that  tlie  special  controls  tlie  general.*  Sucli  clauses  are  not 
to  be  taken  as  substituting  one  set  of  words  for  another,  nor 
as  strictly  defining  what  the  meaning  of  a  word  must  be  under 
all  circumstances.'-  Such  definitions  can,  in  the  nature  of 
things,  have  no  effect  except  in  the  construction  of  the  stat- 
utes themselves.  The  meaning  of  language  depends  on  pop- 
ular usage,  and  cannot,  unless  in  a  very  slight  degree,  be 
affected  by  legislation,'  It  was  enacted  that  in  construing 
statutes  the  words  "  spirituous  liquors  "  should  bo  taken  to  in- 
clude intoxicating  liquors,  and  all  mixed  liquors  any  part  of 
which  is  spirituous  or  intoxicating.  Under  an  indictment 
charging  the  selling  of  spirituous  liquors,  it  was  held  error  to 
admit  proof  of  selling  any  liquor  which  was  not  such  in  fact, 
independently  of  the  statutory  definition;  that  the  statute 
furnished  a  guide  for  the  construction  of  the  statute,  not  the 
indictment.'' 

§  23:^.  Punctuation. —  When  statutes  were  enacted  without 
punctuation,  it  was  a  necessary  conclusion  that  the  punctua- 
tion subsequently  inserted  was  no  part  of  the  law.  That  was 
often  declared,'^  and  has  been  declared  since  the  practice  has 
changed  and  punctuated  bills  are  enacted.^  So,  when  bills  are 
not  printed  and  furnished  in  their  perfected  form  to  members 
of  the  legislative  body,  and  they  are  heard  read,  so  that  the 
ear  and  not  the  eye  takes  cognizance  of  them,'  the  punctua- 
tion, whether  inserted  or  not,  does  not  receive  the  attention  of 
individual  legislators.  It  may  be  assumed  that  the  principal 
points  are  observed  in  the  reading.  The  questions  in  court 
relating  to  punctuation  or  affecting  construction  have  gener- 
ally arisen  on  the  presence,  omission  or  misplacing  of  commas. 

In  Ewing  v.  Burnet  ^  tlie  court  say :  "  Punctuation  is  a  most 
fallible  standard  by  which  to  interpret  a  writing.     It  may  be 

1  Egerton  v.  Third  ]\Iunicipality,  1  note ;  Dwarris  on  St  (2d  ed.)  GOl ;  3 
La.  Ann.  435 ;  Farmers'  Bank  v.  Hale,    Dane's  Abr.  558. 

59  N.  Y.  53.  6  Hammock  v.  Loan  &  Tnist  Co. 

2  Regina  v.  Justices,  7  Ad.  &  E.  480.     105  U.  S.  77 ;  Ciisliing  v.  Worrick,  9 
sStatev.  Canterbmy,  28N.  H.  228;     Gray,    382;    Albright    v.  Fajne,  43 

Neitzel  v.  Concordia,  14  Kans.  446.         Ohio  St  8.     See  Commonwealth  v. 

*  State  V.  Adams,  51  N.  H.  568;    Shopp,  1  Woodw.  Dec.  123. 
Jones  V.  Surprise,  4  New  Eng.  Rep.         ■  BisK  W.  L.  §  78, 

292;  64  N.  H.  243.  UlPet  41. 

*  Harrington  on  St  (5th  ed.)  439, 


308  PAKTS    OF    A    STATUTE   AND   TEEIR   RELATIONS. 

resorted  to  when  all  other  means  fail ;  but  the  court  will  first 
take  the  instrument  by  the  four  corners  in  order  to  ascertain 
its  true  meaning.  If  that  is  apparent  on  judicially  inspecting 
it,  the  punctuation  will  not  be  suffered  to  change  it."  ^ 

Where  effect  may  be  given  to  all  the  words  of  a  statute  by 
transposing  a  comma,  the  alternative  being  the  disregard  of  a 
material  and  significant  word,  or  grossly  straining  and  per- 
verting it,  the  former  course  is  to  be  adopted.^  Courts,  in  the 
construction  of  statutes,  for  the  purpose  of  arriving  at  or  main- 
taining the  real  meaning  and  intention  of  the  law-maker,  will 
disregard  the  punctuation,  or  repunctuate.^  When  the  intent 
is  uncertain,  punctuation  may  afford  some  indication  of  it,^  and 
even  decide  it.*  The  punctuation  of  the  original  act  as  passed 
by  the  legislature  governs  instead  of  the  punctuation  of  the 
printed  copy." 

§  233.  Headings  aud  marginal  notes. —  In  England  mar- 
ginal notes  are  not  regarded  as  part  of  the  law  for  the  same 
reason  that  applies  to  the  title  and  punctuation.'^  Added  to  a 
section  in  the  copy  printed  by  the  queen's  printer,  they  form 
no  part  of  the  statute  itself,  and  are  not  binding  as  an  explana- 
tion, or  as  a  construction  of  the  section.^  Headings  which 
were  arranged  in  the  bill  and  adopted  with  it,  it  was  held, 
might  be  referred  to  to  determine  the  sense  of  any  doubtful 
expression.^ 

1  Albright  v.  Payne,  43  Ohio  St.  8 ;  366 ;  IMatter  of  Ohnstead,  17  Abb. 
Shi-iedley  v.   State,  23  Oliio  St  130 ;     New  Cas.  320. 

Hamilton  v.  Steamer  R.  B.  Hamilton,        *  United  States  v.  Three  R  R  Cos. 

16  id.  428 ;  Allen  v.  RvisseU,  39  id.  336 ;     1  Abb.  (U.  S.)  196. 

MoiTill  V.  State,  38  Wis.  434;  Com-  sSqunes'    Case,    12  Abb.   Pr.   38; 

monwealth  v.  Shopp,  1  Woodw.  Dec.  Cummings  v.  Akron  Cement  Co.  6 

123 ;  Caston  v.  Brock,  14  S.  C.  104.  Blatchf.  509. 

2  Commonwealth  v.  Shopp,  supra.  6  McPhail  v.  Gerry,  55  Vt.  174. 

3  Hamilton  v.  Str.  R.  B.  Hamilton,  '  Claydon  v.  Green,  L.  R.  3  C.  P. 
supra;  Martui  v.  Gleason,  139  Mass.  521 ;  Venour  v.  Sellon,  Lk  B.  2  Ch. 
183 ;  Hammock  v.  Loan  &  Trust  Co.  Div.  523 ;  Sutton  v.  Sutton,  L.  R.  23 
105  U.  S.  77 ;  United  States  v.  Isham,  Clx  Div.  511. 

17  Wall  496 ;  Gyger's  Estate,  65  Pa.        *  Claydon  v.  Green,  supra. 

St  311 ;  Randolph  v.  Bayne,  44  CaL        ^  Hammersmith,    etc.    R'y   Ca  v. 

Brand,  L.  R.  4  H.  L.  Cas.  171. 


CHAPTER  XIII. 


INTERPRETATION  AND  CONSTRUCTION. 


234. 

The  intent  of  a  statute  is  the 
law. 

§256. 

235. 

Its  ascertainment  the  object 
of  interpretation. 

257. 

236. 

Interpretation   and  construc- 
tion compared. 

258. 

237. 

Intent  first  to  be  sought  in 

260. 

language  of  statute  itself. 

262. 

238. 

If  intent  plainly  expressed  it 

207. 

is  to  be  followed  without 

268. 

further  inquuy. 

239. 

The  intention  to  be  ascertained 

282. 

from  entu'e  statute. 

283. 

240. 

General  intent  of  statute  key 

to  meaning  of  the  parts. 

286. 

245. 

The  flexibihty  of  words  and 

clauses  to  harmonize  with 

289. 

the  general  intent. 

246. 

Literal  sense  of  words  not  con- 
ti"oUing. 

292. 

247. 

Interpretation  of  words  and 

293. 

plu'ases. 

307. 

248. 

They  should  be  constiiied  as 

they  are  generally    imder- 

308. 

stood. 

313. 

249. 

How  general  words  construed. 

321. 

250. 

Words    having    popular    and 
teclinical  meaning. 

325. 

253. 

Common-law  words. 

330. 

255. 

Statutory  use  of  words. 

334. 

Change  of  phraseology  of 
statute. 

Statutes  adopted  by  general 
reference. 

Interpretation  with  reference 
to  grammatical  sense. 

Correction  of  mistakea 

Context  and  associated  words. 

Relative  and  quaUfying  words. 

General  words  following  par- 
ticular. 

Reddendo  singula  singulis. 

Intei-pretation  affected  by 
other  statutes. 

Constniction  of  statutes  in 
pari  materia. 

Interpretation  with  reference 
to  common  law. 

Extraneous  aids  to  construc- 
tion. 

Judicial  knowledge 

Contemporaneous  construc- 
tion. 

General  usaga 

Stare  decisis. 

Effects  and  consequences. 

Exjyressio  unius  est  exdusio 
alteimis. 

Presumptions. 

ImpUcations  and  incidents. 


§  234.  The  intent  of  a  statute  is  the  laAV. —  If  a  statute  is 
Yalid  it  is  to  liave  eU'ect  according  to  the  purpose  and  intent 
of  the  law-maker.  The  intent  is  the  vital  part,  the  essence  of 
the  law.^     This  is  the  intention  embodied  and  expressed  in 

1  Pliillips  V.  Pope's  Heirs,  10  B.  ]Mon.  sett,  27  Me.  266 ;  Reynolds  v.  Holland, 

172 :  Wmslow  v.  Kimball,  25  Me.  493 ;  35  Ark.  56 ;  Ogden  v.  Strong,  2  Paiue, 

Leoni  v.  Taylor,  20  Mich.  148 ;  Mason  584 ;    Milburn    v.   State,   1    Md.   17 ; 

V.  Rogers,  4  Litt.  377 ;  Stevens  v.  Fas-  Green  v.  State,  59  id.  123 ;  "Watson  v. 


olO  INTEKPRETATION    A.>'D    COXSTRUCTION. 

the  statute.  A  legislative  intention  to  be  efficient  as  law  must 
be  set  forth  in  a  statute;  it  is  therefore  a  written  law.^  How 
the  intention  is  to  be  ascertained  is  only  answered  by  the  prin- 
ciples and  rules  of  exposition.  If  a  statute  is  plain,  certain 
and  unambiguous,  so  that  no  doubt  arises  from  its  own  terms 
as  to  its  scope  and  meaning,  a  bare  reading  suffices ;  then  in- 
terpretation is  needless.^  And  where  the  intention  of  a  stat- 
ute has  been  ascertained  by  the  application  of  the  rules  of 
interpretation,  they  have  served  their  purpose,  for  all  such 
rules  are  intended  to  reach  that  mtent.' 

The  sole  authority  of  the  legislature  to  make  laws  is  the  foun- 
dation of  the  principle  that  courts  of  justice  are  bound  to  give 
eifect  to  its  intention.  "When  that  is  plain  and  palpable  they 
must  follow  it  implicitly.  The  rules  of  construction  with  which 
the  books  abound  apply  only  where  the  words  used  are  of 
doubtful  unport ;  they  are  only  so  many  lights  to  assist  the 
courts  in  arriving  with  more  accurac}^  at  the  true  interpreta- 
tion of  the  intention.  This  is  true  whether  the  statute  be  pub- 
he  or  private,  general  or  special,  remedial  or  penal.*  These 
rules  are  a  part  of  the  law  of  the  land  equally  with  the  stat- 
utes themselves,  and  not  much  less  important.  The  function 
of  such  interpretation  unrestrained  by  settled  rules  would  in- 

Hoge,  7  Yerg.  344 ;  Canal  Co.  t.  R.  Barb.  44 ;  Pillow  v.  BushneU,  5  Barb. 

R  Co.  4  GiU  &  J.  1 ;  Jackson  v.  Col-  156 ;  Coffin  v.  Rich,  45  Me.  507 ;  Sneed 

lins,  3  Cow.  89 ;  Jackson  v.  Thurnian,  v.     Commonwealth,    6    Dana,    339 ; 

0  Jolm.   322 ;  Crocker  v.   Crane,  21  Cearfoss  v.  State,  42  Md.  406 ;  Beall  v. 

Wend   211;  Murray  v.  R.  R.  Co.   4  HaiTv^ood,  2    Har.  &   J.  167;  Koch 

Keyes,   274 ;  Mclnery  v.   Galveston,  v.  Bridges,  54  Miss.  247 ;  Learned  v. 

58  Tex.  334 ;  Atkins  v.  Disintegrating  Corley,    43    Miss.    689 ;    Ruggles    v. 

Co.  18  WalL  272,  301 ;  United  States  Illinois,  108  U.  S.  526 ;  Sussex  Peerage, 

V.   Rhodes,   1  Abb.  (U.  S.)  at  p.   36 ;  11  CL  &  Fm.  143 ;  Water  Commis- 

Eyston  v.  Studd,  2  Plowd.  465 ;  Palms  sioners  v,  Brewster,  42  N.   J.  L.  125 ; 

V.  Shawano  Co.  61  Wis.  211.  Rudderow  v.  State,  81  id.   512;  Vat- 

1  Barker  v.  Esty,  19  Vt.  131,  138 ;  tel,  b.  2,  sec.  363 ;  Rex  v.  Hodnett,  1 

Watson  V.  Hoge,  7  Yerg.  344 ;  Swift  T.  R.  96. 

V.  Luce,  27  Me.  285.  3  Parsons  v.  Circuit  Judge,  37  Midi. 

-'  United  States  v.  Hartwell,  6  Wall.  287 ;  New  Orleans,  etc.  R.  R.  Co.  v. 

395 ;  Ogden  v.  Strong,  2  Paine,  584 ;  Hemi  h  U,    35    Miss.   17 ;    Ezekiel  v. 

United  States  y.  Wdtberger,  5  Wlieat  Dixon,  3  Ga.  151 ;  Russell  v.  Farqu- 

95 ;  Denton  v.  Reading,  22  La.  Ann.  har,  55  Tex.  359 ;  McCluskey  v.  Crom- 

607;  Fitzpatrick  v.  Gebhart,  7  Kan.  well,  11  N.  Y.  601. 

35 ;  McCluskey  v.  CromweU,  11  N.  Y.  •»  State  v.  Stephenson,  2  BaUey,  334. 
601 ;     People    v.    Schoonmaker,     63 


INTERPKETATIOX   AND    CONSTKUCTION.  311 

troduce  great  uncertainty,  and  would  involve  a  power  vii'tually 
legislative.'  AVlien  a  doubt  arises  upon  the  construction  of  the 
words  it  is  the  duty  of  the  coui't  to  remove  the  doubt  by  de- 
ciding it ;  and  when  the  court  has  given  its  decision,  the  point 
can  no  longer  be  considered  doubtful.- 

§  235.  To  fiud  out  the  intent  tlie  object  of  all  interpreta- 
tion.—  It  is  the  intent  of  the  law  that  is  to  be  ascertained,  and 
the  courts  do  not  substitute  their  views  of  what  is  just  or  ex- 
pedient.' Courts  are  not  at  hberty  to  speculate  upon  the  inten- 
tions of  the  legislature  where  the  words  are  clear,  and  to 
construe  an  act  upon  their  own  notions  of  what  ought  to  have 
been  enacted.*  The  wisdom  of  a  statute  is  not  a  judicial  ques- 
tion ;  *  nor  can  courts  correct  what  they  may  deem  excesses  or 
omissions  in  legislation,  or  reheve  against  the  occasionally 
harsh  operation  of  statutory  provisions  without  danger  of 
doing  more  mischief  than  good.^ 

§236.  Interpretation  and  construction  compared. —  Dr. 
Lieber  defines  interpretation  as  "  the  art  of  finding  out  the  true 
sense  of  any  form  of  words ;  that  is,  the  sense  which  their  au- 
thor intended  to  convey,  and  of  enabhng  others  to  derive  from 
them  the  same  idea  which  the  author  intended  to  convey."  ^ 
He  uses  this  word  in  a  sense  distinct  from  construction}  These 
words,  however,  are  very  generally  used  interchangeably  and 
as  practically  synonymous.  The  hteral  interpretation  of  a  stat- 
ute is  finding  out  its  true  sense  according  to  Dr.  Lieber's  defi- 

1  Spencer  v.  State,  5  Ind.  45.     See        7  Hermeneutics,  p.  11. 

Wliart.  Com.  onAm.  Law,  §§330, 604.  8  He  says:     "Construction  is   the 

2  Bell  V.  Holtby,  L.  R  15  Eq.  178.  drawing    of  conclusions    respecting 

3  Hadden  v.  Collector,  5  Wall.  107 ;  subjects  that  he  beyond  the  direct  ex- 
State  V.  Clarke,  54  Mo.  17,  36 ;  Jewell  pression  of  the  text,  from  elements 
V.  Weed,  18  Mnn.  272 ;  Municipal  known  from  and  given  in  the  text 
BuUding  Society  v.  Kent,  L.  R.  9  Conclusions  wliich  ai-e  in  the  sphit 
App.  Cas.  273 ;  Douglass  v.  Chosen  though  not  in  the  letter  of  the  text" 
Freeholders,  38  N.J.  L.  212,  216;  For-  Hermeneutics,  44.  And  again  he 
dyee  v.  Bridges,  1  H.  L.  Cas.  1.  says :    "  In  the  most  general  adai)ta- 

•*  York,  etc.  R'y  Co.  v.  The  Queen,  1  tion  of  the  term,  construction  signi- 

E.  &  B.  858,  864.  fies   the   representing   of  an  entire 

5Id. ;     ReithmUler    v.    People,    44  whole  from  given  elements  by  just 

!Mich.  280;  Sheley  v.  Detroit,  45  id.  conclusions.     Thas,  it  is  said,  a  few 

431.  actions  may  sometimes  sulfice  to  con- 

''Bronson,  J.,  in  Waller  v.  Harris,  strue  the  whole  character  of  a  majo." 

20  Wend.  562 ;  State  v.  Heman,   70  Id.  49. 
Mo.  441. 


812 


INTEKPRETATIOI>'   AXD    COXSTEUCTION. 


nition  —  by  making  the  statute  its  own  expositor.  If  the  true 
sense  can  thus  be  discovered,  there  is  no  resort  to  construction.^ 
The  certainty  of  the  law  is  next  in  importance  to  its  justice. 
And'  if  the  legislature  has  expressed  its  intention  in  the  law 
itself,  with  certainty,  it  is  not  admissible  to  depart  from  that 
intention  on  any  extraneous  consideration  or  theory  of  con- 
struction.'^ Yery  strong  expressions  have  been  used  by  the 
courts  to  emphasize  the  principle  that  they  are  to  derive  their 
knowlcdo-e  of  the  legislative  intention  from  the  words  oi  Ian- 
guage  of  the  statute  itself  which  the  legislature  has  used  to  ex- 
press it,  if  a  knowledge  of  it  can  be  so  derived.' 

§  237.  Intent  first  to  be  sought  in  language  of  statute 
itself. —  "  It  is  .beyond  question  the  duty  of  courts  in  constru- 
ing statutes  to  give  effect  to  the  intent  of  the  law-making 
power,  and  seek  for  that  intent  in  every  legitimate  way.  But 
.  .  .  first  of  aU  in  the  words  and  language  employed ;  and 
if  the  words  are  free  from  ambiguity  and  doubt,  and  express- 
plainly,  clearly  and  distinctly  the  sense  of  the  framers  of  the 
instrument,  there  is  no  occasion  to  resort  to  other  means  of 
interpretation.  It  is  not  allowable  to  interpret  what  has  no 
need  of  interpretation."  *    The  statute  itself  furnishes  the  best 


1  Cearf  OSS  v.  State,  42  Md  403,  406. 

2  IcL ;  Jolinson  v.  Railroad  Co.  49 
N.  Y.  455 :  Alexander  v.  Wortliing- 
ton,  5  Md.  471 ;  United  States  v.  Rags- 
dale,  Herapst  497. 

SDenn  v.  Reid,  10  Pet.  524;  Wat- 
son V.  Hoge,  7  Yerg.  344 ;  McCluskey 
V.  CromweU,  11  N.  Y.  601 ;  Coffin  v. 
Rich,  45  Me.  507 ;  Hoyt  v.  Commis- 
sioners of  Taxes,  23  N.  Y.  224;  Ben- 
nett V.  Worthington,  24  Ark.  487; 
Gai-dner  v.  Collins,  2  Pet.  93 ;  Brad- 
ford T.  Treasurer,  Peck  (Tenn.),  425 ; 
Warbitrton  v.  Loveland,  2  Dow  & 
CI.  489 ;  Stm-ges  v.  Crowninshield,  4 
Wheat.  202;  Denton  v.  Reading,  22 
La.  Ann.  607 ;  State  v.  Wiltz,  11  La. 
Ann.  439 ;  Kinderley  v.  Jervis,  25  L. 
J.  Ch.  541 ;  New  Orleans,  etc.  R.  R. 
Co.  V.  Hemplull,  35  Miss.  17 ;  Ezekiel 
T.  Dixon,  3  Ga.  152 ;  State  v.  Buck- 
man,  18  Fla.  267;  Hindmarsh  v. 
Charlton,  8  H.  L.  Cas.  166 ;  Jennings 


V.  Love,  24  Miss.  249;  Tynan  v. 
Walker,  35  Cal.  634 ;  Virginia  City, 
etc.  R.  R.  Co.  V.  Lyon  Coxmty,  6  Nev. 
68 ;  Scaggs  v.  Baltimore,  etc.  R.  R.  Co. 
10  Md.  268 ;  TrapnaU,  Ex  parte,  6  Ark. 
9 ;  Coimtess  of  Rothes  v.  Kii'kcaldy 
Water  Works,  L.  R.  7  App.  Cas.  702 ; 
Abbott  V.  Mddleton,  7  H.  L.  68 ;  The 
Sussex  Peerage,  11  CL  &  Fin.  85, 143 ; 
Myers  v.  Perigal,  2  D.  Mac.  &  G.  619. 
4  McCluskey  v.  CromweU,  11  N.  Y. 
601 ;  Clark  v.  Mayor,  etc.  29  Md.  283  ^ 
People  V.  Schoonmaker,  63  Barb.  44, 
47 ;  Benton  v.  Wickwii-e,  54  N.  Y.  226,^ 
228;  Bonds  v.  Greer,  56  Miss.  710; 
Schlegel  v.  Am.  Beer,  etc.  Co.  12  Abb. 
New  Cas.  280 ;  S.  C.  64  How.  Pr.  196  ^ 
People  V.  Supervisors,  13  Abb.  New 
Cas.  421;  Fitzpatrick  v.  Gebhart,  7 
Kan.  35 ;  Fordyce  v.  Bridges,  1  H.  L. 
Cas.  1 ;  Logan  v.  Corn-town,  13  Beav. 
22;  Schooner  Pauline's  Cargo  v. 
United  States,  7  Cranch,  152 ;  Notley 


INTEKPEETATIOX   AND    CONSTKUCTION.  313 

means  of  its  own  exposition;  and  if  tlic  sense  in  wliicli  words 
were  intended  to  be  nsed  can  be  clearly  ascertained  from  its 
parts  and  provisions,  the  intention  tlms  indicated  will  prevail 
"without  resorting  to  other  means  of  aiding  in  the  construc- 
tion.^ 

In  Alexander  v.  Worthington,-  the  Maryland  court  of  ap- 
peals have  lucidly  expressed  this  sound  doctrine  on  the  point 
under  consideration :  "  The  language  of  a  statute  is  its  most 
natural  expositor ;  and  where  its  language  is  susceptible  of  a 
sensible  interpretation,  it  is  not  to  be  controlled  by  any  extra- 
neous considerations.  The  construction  is  to  be  on  the  entu-e 
statute ;  and  where  one  part  is  susceptible  indifferently  of  two 
constructions,  and  the  language  of  another  part  is  clear  and 
definite,  and  is  consistent  with  one  of  the  two  constructions  of 
which  the  former  part  of  the  statute  is  susceptible,  and  is  op- 
posed to  the  other  construction,  then  we  are  to  adopt  that 
construction  which  w^ill  render  all  clauses  of  the  statute  har- 
monious, rather  than  that  other  construction  which  Avill  make 
one  part  contradictory  to  another.  "Where  the  letter  of  the 
statute  is  inconsistent  with  itself,  we  may  eviscerate  an  intent 
by  considering  the  mischief  existing  and  the  remedy  proposed 
to  be  introduced.  .  .  .  We  are  not  at  hberty  to  imagine 
an  intent  and  bind  the  letter  of  the  act  to  that  intent ;  much 
less  can  we  indulge  in  the  license  of  striking  out  and  inserting, 
and  remodeling,  with  the  view  of  maldng  the  letter  express  an 
intent  which  the  statute  in  its  native  form  does  not  evidence. 
Every  construction,  therefore,  is  vicious  which  requires  great 
changes  in  the  letter  of  the  statute,  and,  of  the  several  con- 
structions, that  is  to  be  preferred  which  introduces  the  most 
general  and  uniform  remedy." 

The  legislature  must  be  understood  to  mean  what  it  has 
plainly  expressed,  and  this  excludes  construction.*  The  legis- 
lative intent  being  plainly  expressed,  so  that  the  act  read  by 

V.  Buck,  8  B.  &  C.  164 ;  Eex  v.  Poor  United  States  v.  Fisher,  2  Cranch, 

Law  Commissioner,  6  A.    &  E.   17 ;  358 ;  The  Sussex  Peerage,  11   CL  & 

Att'y-Gen'l  v.  SiUem,  2  H.  &  C.  508.  Fin.  143 ;  Koch  t.  Bridges,  45  Miss. 

1  Green  v.  WeUer,  33  Miss.  650.  247 ;   United    States  v.    HartweU,   6 

^  5  Md.  485.  WaU.  395 ;  State  v.  Buckman,  18  Fla. 

3  Rex  V.  Banbury,  1  A.  &  E.  142;  267;  Ogden  v.  Strong,  2  Pame,  584; 

Case  V.  Wildridge,  4  Ind.  51 ;  John-  Denn  v.  Reid,  10  Pet.  524. 

Bon  V.  Raihoad  Co.  49  X.  Y.  455,  462 ; 


814  nsTE-^rRETATIOIf   AND    CONSTRUCTION. 

itself,  or  in  connection  with  other  statutes  pertaining  to  the 
same  subject,  is  clear,  certain  and  unambiguous,  the  courts 
have  only  the  simple  and  obvious  duty  to  enforce  the  law  ac- 
cording to  its  terms.^  Cases  cannot  be  included  or  excluded 
merely  because  there  is  intrinsically  no  reason  against  it.^ 
Even  when  a  court  is  convinced  that  the  legislature  really 
meant  and  intended  something  not  expressed  by  the  phrase- 
ology of  the  act,  it  will  not  deem  itselE  authorized  to  depart 
from  the  plain  meaaing  of  language  which  is  free  from  am- 
biguity.' If  a  legislative  enactment  violates  no  constitutional 
provision  or  principle,  it  must  be  deemed  its  own  sufficient 
and  conclusive  evidence  of  the  justice,  propriety  and  pohcy 
of  its  passage.*  Courts  have,  then,  no  power  to  set  it  aside, 
or  evade  its  operation  by  forced  and  unreasonable  construc- 
tion. If  it  has  been  passed  improvidently,  the  responsibility 
is  with  the  legislature  and  not  with  the  courts.^  Whether  the 
law  be  expressed  in  general  or  limited  terms,  the  legislature 
should  be  held  to  mean  what  they  have  plainly  expressed,  and 
consequently  no  room  is  left  for  construction ;  but  if,  from  a 
view  of  the  whole  law,  or  from  other  laws  in  pai'i  materia, 
the  evident  intention  is  different  from  the  literal  import  of  the 
terms  employed  to  express  it  in  a  particular  part  of  the  law, 
that  intention  should  prevail,  for  that,  in  fact,  is  the  wiU  of 
the  legislature.^ 

»  Rosenplaenter  v.  Roessle,  54  N.  Y.  Jewell  v.  Weed,  18  Minn.  272 ;  Lower 

2G2 ;  Woodbm-y  v.  Berry,  18  Oliio  St.  Chatliam,  In  re,  35  N.  J.  L.  497. 

456,  462 ;  Miller  v.  Salomons,  7  Ex.  5  Leonard  v.  Wiseman,  81  Md.  201 ; 

560 ;    Green  v.   Cheek,  5  Ind.   105 ;  State  v.  Vicksburg,  etc.  R.  R.  Co.  51 

Douglass  V.  Chosen  Freeholders,  38  Miss.    361;    Rolu-bacher    v.    City  of 

N.  J.  L.  214 ;  Story  on  Const  §  426.  Jackson,  id.   735 ;  Winter  v.  Jones, 

'^  Denn  v.  Reid,  10  Pet.  524 ;  Pike  v.  10  Ga.  190 ;  Douglass  v.  Chosen  Free- 

Hoare,  2  Eden,  184 ;  Ogden  v.  Strong,  holders,  88  N.  J.  L.  214 ;  Ornamental 

2  Paine,  584.  Woodwork  Co.  v.  Brown,  2  H.  &  C. 

3  Smith  V.  State,  66  INId.  215 ;  Wood-  63 ;    Mirehouse  v.   Rennell,  1   CL   & 

l)ury  V.  Berry,  18  Oliio  St.  456 ;  Brad-  Fm.  546 ;  May  v.  Great  W.  R'y  Co. 

bury  V.  Wagenhorst,  54  Pa.  St.  182 ;  L.  R.  7  Q.  B.  377 ;  Rex  v.  Poor  Law 

St.  Louis,  etc.  R.  R.  Co.  v.  Clark,  53  Commissioners,  6  Ad.  &  E.  7. 

Mo.  214;  Notley  v.  Buck,  8  B.  &  C.  « United  States  v.  Fisher,  2  Cr.  358: 

164  Farrell  Foundry  v.   Dart,  26  Conn. 

4Flint,etc.  Co.v.WoodhuIl,25Mich.  376,   382;  Sneed  v.  Commonwealth, 

99 ;  People  v.  Briggs,  50  N.  Y.  553 ;  6  Dana,  338 ;  Abley  v.  Dale,  11  C.  B. 

Collin  V.  Kjioblock,  25  La.  Ann.  263 ;  378 ;  Miller  v.  Salomons,  7  Ex.  475. 


INTEEPKETATIOX   AND    CONSTEUCTION.  315 

§  238.  If  intent  plainly  expressed  it  is  to  be  followed 
ivithout  further  inquiry. —  "When  the  meaning  of  a  statute  is 
clear,  and  its  provisions  are  susceptible  of  but  one  interpreta- 
tion, that  sense  must  be  accepted  as  the  law;  its  consequences, 
if  evil,  can  only  be  avoided  by  a  change  of  the  law  itself,  to  be 
effected  by  the  legislature  and  not  by  judicial  construction.^ 
But  an  interpretation  of  a  statute  which  must  lead  to  conse- 
quences which  are  mischievous  and  absurd  is  inadmissible  ^if 
the  statute  is  susceptible  of  another  interpretation  by  which 
such  consequences  can  be  avoided.-  For  this  pm^pose  all  parts 
of  a  statute  are  to  be  read  and  compared.  StiU,  when  the  words 
of  a  provision  are  plainly  expressive  of  an  intent  not  rendered 
dubious  by  the  context,  no  interpretation  can  be  permitted  to 
thwart  that  intent ;  the  interpretation  must  declare  it,  and  it 
must  be  carried  into  effect  as  the  sense  of  the  law." 

In  the  case  of  Sturges  v.  Crowninshield •*  the  court  say: 
*'  Although  the  spirit  of  the  instrument,  especially  of  the  con- 
stitution, is  to  be  respected  not  less  than  its  letter,  yet  the 
spirit  is  to  be  collected  chiefly  from  its  words.  It  would  be 
dangerous  in  the  extreme  to  infer  from  extrinsic  circumstances 
that  a  case  for  which  the  words  of  the  instrument  expressly 
provided  shall  be  exempt  from  its  operation.  Where  words 
conflict  ^yiih.  each  other,  where  the  different  clauses  of  the  in- 
strument bear  UDon  each  other,  and  would  be  inconsistent  un- 
less  the  natural  and  common  import  of  the  words  be  varied, 

^  Bosley  v.  Mattingly,  14  B.  Mon.  89 ;        3  Douglass  v.  Chosen  Freeholders, 

United  States  v.  Ragsdale,  Hempst  38  N.  J.  L.  214 ;  Bradbuiy  v.  Wagen- 

497 ;  Bartlett  v.  Mon-is,  9  Porter,  266 ;  horst,  54  Pa.  St.  182 ;  Howard  Asso- 

Att'y-Gren'l  v.  Sillem,  2  H.  &  C.  510 ;  ciation's  Appeal,  70  id.  344 ;  Johnson 

Kinderley  v.  Jervis,  25  L.  J.  Ch.  541 ;  v.  R  R  Co.  49  N,  Y.  455 ;  People  v. 

Arthm-  v.  Morrison,  96  U.  S.  108.  Schoonmaker,   63  Barb.  49 ;  United 

2  Caledonian  R'y  Co.  v.  North  Brit-  States    v,    Ragsdale,    Hempst    497 ; 

ish  R'y  Co.  L.  R.  6  App.  Cas.   122;  United  States  v.  Warner,  4  McLean. 

State  V.  Wiltz,  11  La,  Ann.  439 ;  Ellis,  463 ;  FarreU  Fovmdry  v.  Dart,  26  Conn. 

Ex  parte,   11   Cal.   223;   Ryegate  v.  376 ;  State  v.  Washoe  Co.  6  Ne v.  104 ; 

Wardsboro,  30  Vt.  746 ;  Walton,  Ex  Bartlett  v.  Mon-is,  9  Port  266 ;  Fitz- 

parte,  L.  R.  17  Ch.  Div.  746;  Cover's  patrick  v.  Gebhart,  7  Kan.  35;  IMUler 

Case,  L.   R,   1   Ch,  Div.   198 ;  Wear  v.  Salomons,  7  Ex  475 ;  Abley  v.  Dale, 

River    Commissioners   v.   Adamson,  11  C.  B.  378;  Gwynne  v.  Buruell,  6 

L.  R  1  Q.  B.  Div.  549;  Vicar,  etc.  of  Biug.  N.  C.  559. 
St.  Sepulchre's.  Ex  parte,  33  L.  J.  Cli.        ^  4  Wheat  202. 
373 ;  Alvwd  v.  Lent  23  Mich.  373. 


'31G  INTEEPKETATIOX    AND    CONSTKUCTION. 

construction  becomes  necessary ;  and  to  depart  from  the  obvi- 
ous meaning  of  words  is  justifiable.  Yet,  in  no  case,  the  plain 
meaning  of  a  provision,  not  contradicted  by  any  other  pro- 
vision in  the  same  instrument,  is  to  be  disregarded  because 
Ave  beheve  the  framers  of  that  instrument  could  not  intend 
Avhat  they  sa}^.  It  must  be  one  in  which  the  absm-dity  and 
injustice  of  applymg  the  provision  to  the  case  would  be  so 
monstrous  that  all  mankind  would,  without  hesitation,  unite 
in  rejecting  the  application." 

One  who  contends  that  a  section  of  an  act  must  not  be  read 
literally  must  be  able  to  show  one  of  two  things :  either  that 
there  is  some  other  section  which  cuts  down  or  expands  its 
meaning,  or  else  that  the  section  itself  is  repugnant  to  the 
general  purview.^  The  question  for  the  courts  is,  what  did 
the  legislature  really  intend  to  direct ;  and  this  intention  must 
be  sought  in  the  whole  of  the  act,  taken  together,  and  other 
acts  in  pari  materia.  If  the  language  be  plain,  unambigu- 
ous and  uncontrollable  by  other  parts  of  the  act,  or  other  acts 
or  laws  upon  the  same  subject,  the  courts  cannot  give  it  a 
different  meaning  to  subserve  pubhc  pohcy  or  to  maintain  its 
constitutionahty.  The  limited  meaning  of  words  will  be  dis- 
reffarded  when  it  is  obvious  from  the  act  itself  that  the  use  of 
the  word  was  a  clerical  error,  and  that  the  legislatm-e  intended 
it  in  a  different  sense  from  its  common  meaning.^  "Where 
that  which  is  directed  to  be  done  is  within  the  sphere  of  legis- 
lation, and  the  terms  used  clearly  express  the  intent,  aU  rea- 
soning derived  from  the  supposed  inconvenience,  or  even  ab- 
surdity, of  the  result  is  out  of  place.  It  is  not  the  province  of 
the  courts  to  supervise  legislation  and  keep  it  within  the  bounds 
of  propriety  and  common  sense.^ 

iNuth  V.   Tamplin,  L.  R.  8  Q.   B.  Rex  v.   Banbury,   1  Ad.   &  E.   142; 

Div.  253.  British  Farmers',  etc.  Co.,  Re,  48  L.  J. 

2  Reynolds  v.  Holland,  35  Ark.  56;  Ch.  56;  Ornamental  P.  Woodwork 
Haney  v.  State,  34  Ark.  263.  Co.  v.   Brown,  2  H.  &  C.  63 ;  JVIii-e- 

3  Douglass  V.  Chosen  Freeholders,  house  v.  Rennell,  1  CL  &  Fin.  546; 
38  N.  J.  L.  214 ;  Hyatt  v.  Taylor,  42  Biffin  v.  Yorke,  5  Man.  &  Gr.  437 ; 
N.  Y.  258, 262 ;  Roscnplaenter  v.  Roes-  Rex  v.  Poor  Law  Commissioner,  6  Ad. 
sle,  54  id.  262 ;  Bosley  v.*  Mattiugly,  &  E.  7 ;  May  v.  Great  W.  Ry  Co.  L.  R. 
14  B.  Mou.  89 ;  Abley  v.  Dale,  11  C.  B.  7  Q.  B.  377 ;  Clark  v.  Railroad  Co.  81 
391 ;  G Wynne  v.  Burnell,  6  Bing.  N.  Me.  477. 

C.  559 ;  Miller  v.  Salomons,  7  Ex.  475 ; 


INTEKPKETATIOX    AND    CONSTRUCTION. 


;i' 


§  230.  The  intention  is  to  be  ascertained  by  considering 
the  entire  statnte. —  The  practical  inquiry  is  usually  what  a 
particular  provision,  clause  or  word  means.  To  answer  it  one 
must  proceed  as  he  w^ould  Avith  any  other  composition  —  con- 
strue it  with  reference  to  the  loading  idea  or  purpose  of  the 
Avhole  instrument.  The  whole  and  every  part  must  be  consid- 
ered. The  general  intent  should  be  kept  in  view  in  deter- 
mining the  scope  and  meaning  of  any  part.^  This  survey  and 
comparison  are  necessary  to  ascertain  the  purpose  of  the  act 
and  to  make  all  the  parts  harmonious.  They  are  to  be  brought 
into  accord  if  practicable,  and  thus,  if  possible,  give  a  sensible 
and  intelligible  effect  to  each  in  furtherance  of  the  general  de- 
sign.2  A  statute  should  be  so  construed  as  a  whole,  and  its 
several  parts,  as  most  reasonably  to  accomplish  the  legislative 
purpose.^  If  practicable,  effect  must  be  given  to  all  the  lan- 
guage employed,  and  inconsistent  expressions  are  to  be  har- 
monized to  reach  the  real  intent  of  the  legislature.*  It  is  said 
to  be  the  most  natural  exposition  of  a  statute  to  construe  one 
part  by  another,  for  that  expresses  the  meaning  of  the  makers ; 


1  Georgia  V.  Atkins,  1  Abb.  (U.  S.)  23 ; 
State  V.  Atkins,  35  Ga,  319 ;  Harrison, 
Ex  parte,  4  Cow.  63 ;  Strode  v.  Staf- 
ford Justices,  1  Brock.  163 ;  Martin 
V.  Hunter's  Lessee,  1  Wlieat.  336; 
People  V.  Stevens,  13  Wend.  341 ;  Peo- 
ple v.  Morris,  id.  325 ;  Hopkins  v.  Hay- 
wood, id.  265 ;  Little  Rock,  etc.  R.  R. 
Co.  V.  Howell,  31  Ark.  119;  Swart- 
wout  V.  Railroad  Co.  34  Mich.  389 ; 
City  V.  Schellinger,  15  Phila.  50 ;  Re- 
gina  V.  Mallow  Union,  13  Ir.  C.  L. 
(N.  S.)  35 ;  Nuth  v.  Tamplin,  L.  R.  8 
Q.  B.  Div.  353 ;  EUison  v.  ^Mobile,  etc. 
R  R  Co.  36  Miss.  573 ;  Bishop  v.  Bar- 
ton, 2  Hun,  436 ;  Shoemaker  v.  Lan- 
sing, 17  Wend.  337 ;  People  v.  Com- 
missioners, 3  Hill,  601 ;  Parkinson  v. 
State,  14  ]Md.  184 ;  Chesapeake  &  O. 
Canal  Co.  v.  Railroad  Co.  4  Gill  &  J. 
1 ;  Magruder  v.  CarroU,  4  :\Id.  335 ;  At- 
torney-Cxeneral  V.  Detroit,  etc.  Co.  2 
Midi.  138 :  Ryegate  v.  Wartlsboro,  30 
Vt  746 ;  State  v.  Weigel,  48  :\Io.  29 ; 
Nichols  V.  Wells,  Sneed  (Ky.),  255 ; 


Thompson  v.  Bulson,  78  IlL  277; 
State  V.  Mayor,  35  N.  J.  L.  196 ;  San 
Francisco  v.  Hazeu,  5  CaL  169 ;  Tay- 
lor V.  Palmer,  31  id.  240;  Gates  v. 
Salmon,  35  id.  576 ;  Ogden  v.  Sti'ong, 
3  Paine,  584;  Wilson  v.  Biscoe,  11 
Ark.  44;  Lion  Lis.  Asso.  v.  Tucker, 
L.  R  13  Q.  B.  Div.  180 ;  Cope  v.  Do- 
herty,  2  De  G.  &  J.  614 ;  Jefferys  v. 
Boosey,  4  H.  L.  815 ;  Cearfoss  v.  State, 
42  Md.  406 ;  Commonwealth  v.  Duane, 
1  Binn.  601 ;  Commonwealth  v.  Al- 
ger, 7  Cusli.  53,  89. 

-  Ogden  V.  Strong,  2  Paiuo,  584 ; 
Clemen tson  v.  ^Masou,  L.  R.  10  C  P. 
209.  Li  construing  the  provisions  of 
the  Louisiana  code  the  French  text 
is  to  be  looked  to  in  clearing  up  obscu- 
rities and  ambiguities  in  the  English 
text.  Viterbo  v.  Friedlander,  130  U.  S. 
707. 

■i  Green  v.  State,  59  Md.  133. 

*  Matter  of  N.  Y.  &  Brooklyn  Bridge, 
72  N.  Y.  537,  530. 


318  INTEEPKETATION   AUD   CONSTKUCTION. 

this  exposition  is  ex  vercerihus  actus}  The  words  and  meaning- 
of  one  part  may  lead  to  and  furnish  an  explanation  of  the  sense 
of  another.^  "  To  discover,"  says  Pollock,  C.  B.,  "  the  true 
construction  of  any  particular  clause  of  a  statute,  the  first 
thing  to  be  attended  to,  no  doubt,  is  the  actual  language  of  the 
clause  itself,  as  introduced  by  the  preamble ;  second,  the  words 
or  expressions  which  obviously  are  by  design  omitted ;  third, 
the  connection  of  the  clause  with  other  clauses  in  the  same 
statute,  and  the  conclusions  which,  on  comparison  Avith  other 
clauses,  may  reasonably  and  obviously  be  drawn.  ...  If 
the  comparison  of  one  clause  with  the  rest  of  the  statute  makes 
a  certain  proposition  clear  and  undoubted,  the  act  must  be 
construed  accordingly,  and  ought  to  be  so  construed  as  to  make 
it  a  consistent  whole.  If,  after  all,  it  turns  out  that  that  can- 
not be  done,  the  construction  that  produces  the  greatest  har- 
mony and  the  least  inconsistency  is  that  which  ought  to  pre- 
vail." * 

§  24:0.  GJeueral  intent  of  statute  key  to  meaning  of  tlie 
parts. —  The  presumption  is  that  the  law-maker  has  a  definite 
purpose  in  every  enactment,  and  has  adapted  and  formulated  the 
subsidiary  provisions  in  harmony  with  that  purpose ;  that  these 
are  needful  to  accomplish  it ;  and  that,  if  they  have  the  intended 
effect,  they  will,  at  least,  conduce  to  effectuate  it.  That  pur- 
pose is  an  imphed  limitation  on  the  sense  of  general  terms,  and 
a  touchstone  for  the  expansion  of  narrower  terms.*  This  in- 
tention affords  a  key  to  the  sense  and  scope  of  minor  provis- 
ions.^    From  this  assumption  proceeds  the  general  rule  that  the 

1  Co.  Litfc.  C81a,  Miller,  128  Mass.  269 ;  Eslileman's  Ap- 

2  Mayor  v.  Howard,  6  Har.  &  J.  388 ;  peal,  74  Pa,  St.  42,  46 ;  BaUey  v.  Corn- 
Martin  V.  O'Brien,  34  Miss.  21 ;  City  monwealtli,  11  Bush,  688 ;  Converse 
of  San  Diego  v.  Granniss,  77  Cal.  v.  United  States,  21  How.  463 ;  Cus- 
511.  tin  V.  City  of  Viroqua,  67  Wis.  314. 

3  Attorney-General  v.  Sillem,  2  H.  5  Bm-r  v.  Dana,  23  Cal.  11 ;  Burke 
&  C.  51o.  V.  Monroe  Co.  77  IlL  610 ;  Common- 

*  Orange,  etc.  R.  R.  Co.  v.  Alexan-  wealth  v.  CouncU  of  Montrose,  52  Pa. 
di-ia,  17  Gratt.  176 ;  Jackson  v.  Bradt,  St.  391 ;  MaxweU  v.  CoUins,  8  Ind.  38 ; 
2  CaL  303 ;  Biyant,  In  re,  Deady,  Rex  v.  Inliabitants,  1 T.  R.  96 ;  McCool 
118 ;  McCool  V.  Smith,  1  Black,  459 ;  v.  Smith,  1  Black,  459 ;  Lee  v.  Bark- 
Rex  V.  Comforth,  2  Sti*.  1162 ;  Foster  hampsted,  46  Conn.  213 ;  Haentze  v. 
V.  Collner,  107  Pa.  St.  305;  State  v.  Howe,  28  Wis.  293;  Berry  v.  Clary, 
Mann,  21  Wis.  684 ;  Rice  v.  Railroad  77  Me.  482 ;  Ingraham  v.  Speed,  30 
Co.  1  Black,  358,  377 ;   Chapman  v.  Mies.  410 ;  Colbran  v.  Barnes,  11  C.  B. 


INTERI'RETATIOX   AXD    CoXSTIiUCTION. 


319 


cardinal  purpose  or  intent  of  the  wliolo  act  shall  control,  and 
that  all  the  parts  be  interpreted  as  subsidiary  and  harmonious. 
They  are  to  be  brought  into  harmony,  if  possible,  and  so  con- 
strued that  no  clause,  sentence  or  word  shall  be  void,  superflu- 
ous or  insignificant.'  But  where  a  word  in  a  statute  would 
make  the  clause  in  which  it  occurs  unintelligible,  the  word  may 
be  ehminated  and  the  clause  read  without  it.^  It  would  be 
mischievous  to  attempt  to  wrest  such  words  from  their  proper 
and  legal  meaning  merely  because  they  are  superfluous.'' 

§  241.  The  intention  of  the  wliole  act  will  control  inter- 
pretation of  the  parts. —  Words  and  clauses  in  different  parts 
of  a  statute  must  be  read  in  a  sense  which  harmonizes  with 


(N.  S.)  344 ;  Edwai-ds  v.  Dick,  4  B.  & 
Aid.  212 ;  Mclntyre  v.  Ingraham,  35 
Miss.  25 ;  State  v.  Judge,  12  La.  Ann. 
777 ;  Brewer  v.  Blougher,  14  Pet.  198 ; 
State  V.  Mayor,  35  N.  J.  L.  196 ;  Opin- 
ion of  Justices,  7  Mass.  523 ;  Catlin  v. 
HuU,  21  Vt.  152 ;  Ruggles  v.  Wash- 
ington Co.  3  Mo.  496 ;  Monck  v.  Hil- 
ton, 2  Ex.  Div.  268 ;  Barber  v.  Waite, 
1  Ad.  &  E.  514 ;  Helm  v.  Chapman, 
66  Cal  291 ;  Somerset  v.  Dighton,  12 
Mass.  382 ;  Wliitney  v.  Whitney,  14 
Mass.  88,  92 ;  United  States  v.  Samid- 
ers,  22  Wall.  492 ;  Negro  Bell  v.  Jones, 
10  Md.  322 ;  Brown  v.  G.  W.  R.  Co.  9 
Q.  B.  Div.  750 ;  HiU,  Ex  pai'te,  6  Cli. 
Div.  63 ;  Jones  v.  Water  Com'rs,  34 
'Mich.  273 ;  Smith  v.  Pliiladelpliia,  81 
Pa.  St.  38 ;  Girard,  etc.  Co.  v.  PhUa- 
delpliia,  88  id.  393 ;  United  States  v. 
Jarvis,  Da  vies,  274 ;  Ldon  Ins.  Asso.  v. 
Tucker,  12  Q.  B.  Div.  186 ;  Commer- 
cial Bank  v.  Foster,  5  La.  Ann.  516 ; 
New  Orleans  v.  Salamander  Ins.  Co. 
25  La.  Ann.  650;  Bear  Brothers  v. 
Marx,  63  Tex.  298 ;  Wassell  v,  Tunnah, 
25  Ark.  101 ;  Jefferys  v.  Boosey,  4 
H.  L.  Cas.  815 ;  Tonnele  v.  Hall,  4 
N.  Y.  140 ;  Big  Black  Creek,  etc.  Co. 
V.  Commonwealth,  94  Pa.  St  450; 
Ruggles  V.  Illinois,  108  U.  S.  520; 
Lake  v.  Caddo  Parish,  37  La,  Ann. 
788;     CrawfordsviUe,    etc.    Co.     v. 


Fletcher,  104  Ind.  97 ;  Keith  v.  Qum- 
ney,  1  Oregon,  364. 

1  Mayor  v.  Howard,  6  H.  &  J.  883 ; 
Martin  v.  O'Brien,  34  Miss.  21; 
United  States  v.  Hawkins,  4  Martin 
(N.S.),317;  City  Bank  v.Huie,  1  Rob. 
(La.)  236 ;  People  v.  Burns,  5  Mch.  114 ; 
Potter  V.  Safford,  50  id.  46;  Reith- 
miller  v.  People,  44  id.  280,  284; 
Brooks  V.  Mobile  School  Commission- 
ers, 31  Ala,  227;  KeUy's  Heirs  v. 
McGuire,  15  Ark.  555;  Dunlap,  Ex 
parte,  71  Ala.  93 ;  Attorney-General 
V.  Detroit,  etc.  R  R.  Co.  2  IMich.  138 ; 
Aldi-idge  v.  Mardoif,  32  Tex.  204; 
Green  v.  Cheek,  5  Ind.  105 ;  Wilson 
V.  Biscoe,  11  Ark.  44;  Gates  v. 
Salmon,  35  CaL  576 ;  State  v.  Tm-n- 
pike  Co.  16  Ohio  St.  308,  320 ;  Cear- 
foss  V.  State,  42  Md.  406 ;  Brooks  v. 
Hicks,  20  Tex.  666 ;  Wilkinson  v.  Le- 
land,  2  Pet.  627,  602;  Taylor  t. 
Palmer,  31  CaL  240 ;  Howard  v.  Mans- 
field, 30  Wis.  75;  State  ex  rel.  v. 
Commissioners,  etc.  34  Id.  162 ;  Com- 
monwealth V.  Intoxicating  Liquors, 
108  Mass.  19 ;  ^Miipple  v.  Judge,  26 
Midi.  343. 

2  Stone  V.  Yeovil,  L.  R  1  C.  P.  Div. 
691. 

3  Hough  V.  Windus,  L.  R  12  Q.  B. 
Div.  229. 


320  IXTEKPEETATION   AXD   CONSTKTJOTTON. 

the  subject-matter  and  general  purpose  of  the  statute.  Ko 
clearer  statement  has  been  or  can  be  made  of  the  law  as  to 
the  dominating  influence  of  the  intention  of  a  statute  in  the 
construction  of  all  its  parts  than  that  which  is  found  in  Kent's 
Commentaries :  "  In  the  exposition  of  a  statute  the  intention 
of  the  law-maker  will  prevail  over  the  hteral  sense  of  the 
terms ;  and  its  reason  and  intention  will  prevail  over  the  strict 
letter.  When  the  words  are  not  explicit  the  intention  is  to  be 
collected  from  the  context ;  from  the  occasion  and  necessity  of 
the  law ;  from  the  mischief  felt,  and  the  remedy  in  view ;  and 
the  intention  is  to  be  taken  or  presumed  according  to  what  is 
consonant  with  reason  and  good  discretion."  ^  If  upon  exam- 
ination the  general  meaning  and  object  of  the  statute  be 
found  inconsistent  with  the  hteral  import  of  any  particular 
clause  or  section,  such  clause  or  section  must,  if  possible,  be 
construed  according  to  that  purpose.  But  to  warrant  the 
change  of  the  sense,  according  to  the  natural  reading,  to  ac- 
commodate it  to  the  broader  or  narrower  import  of  the  act, 
the  intention  of  the  legislature  must  be  clear  and  manifest.^ 
The  apphcation  of  particular  provisions  is  not  to  be  extended 
beyond  the  general  scope  of  a  statute,  unless  such  extension  is 
manifestly  designed.  Legislatures,  like  courts,  must  be  con- 
sidered as  using  expressions  concerning  the  thing  they  have  in 
hand ;  and  it  would  not  be  a  fair  method  of  interpretation  to 
apply  their  words  to  subjects  not  within  their  consideration, 
and  which,  if  thought  of,  would  have  been  more  particularly 
and  carefuUy  disposed  of .^  The  mere  literal  construction  ought 
not  to  prevail  if  it  is  opposed  to  the  intention  of  the  legis- 
lature apparent  from  the  statute ;  and  if  the  words  are  suffi- 

1 1   Kent's  Com.  461 ;  Jennings  v.  City  v.  Schellinger,  15  Pliila.  50 ;  Com- 

Love,    24  Miss.   249 ;    Harrison,    Ex  inercial  Bank  v.  Foster,  5  La.  Ann. 

parte,  4  Cow.  63 ;  People  v.  Utica  Ins.  516 ;   Kelly's    Heirs    v.   McGuire,  15 

Co.  15  John.  358 ;  Sti'ode  v.  Staflford  Ark.  555 ;  Cearfoss  v.  State,  42  Md. 

Justices,  1  Brock.  162 ;  State  v.  Clarks-  408 ;  Brooks  v.   Hicks,  20  Tex.  666 ; 

ville,  etc.  Co.  2  Sneed,  88 ;  Swann  v.  Wilkinson  v.  Leland,  2  Pet.  627,  662 ; 

Buck,     40    Miss.    268 ;     Learned    v.  Taylor  v.  Palmer,  31  Cal  240 ;  Com- 

Corley,  43  id.  688 ;  Little  Rock,  etc.  R  monwealth  v.    Conyngham,   66  Fa. 

Pt.  Co.  V.  Howell,  31  Ark.  119;  Mat-  St.  99. 

thews  V.  Commonwealth,  18  Gratt.  2  Holbrook    v.   Holbrook,   1    Pick. 

989;  Swartwout  v.   Railroad  Co.  24  248. 

Mich.   389 ;  Russell  v.  Farquhar,   55  a  Estate  of  Ticknor,  18  Mich,  44. 
Tex.  359;  Ezekiel  v.  Dixon,  3  Ga.  152 ; 


IMTEKPEETATION    AND    CONSTRUCTION.  321 

ciently  flexible  to  admit  of  some  other  construction  by  which 
*hat  intention  can  be  better  effected,  the  law  requu^es  that 
construction  to  be  adopted.^  The  intention  of  an  act  involves 
a  consideration  of  its  subject-matter,  and  the  change  in,  or  an 
addition  to,  the  law  which  it  proposes ;  hence  the  supreme  im- 
portance of  the  rule  that  a  statute  should  be  construed  with 
reference  to  its  general  purpose  and  aim.  "  Where  the  words," 
says  Lush,  J.,  "  employed  by  the  legislature  do  not  directly 
apply  to  the  particular  case,  we  must  consider  the  object  of 
the  act."  - 

§  242.  Illustrations. —  Words  of  absolute  repeal  have  been 
held  to  be  quahfied  by  the  intention  manifested  in  other  parts 
of  the  same  act.^  One  section  of  a  statute  provided  that  if  a 
plaintiff  recovered  a  sum  "  not  exceeding "  five  pounds  he 
should  recover  no  costs ;  in  another  section,  that  if  he  recovered 
"less  than"  that  sum,  and  the  judge  certified,  he  should  re- 
cover costs.  To  make  the  statute  fully  answer  the  obvious  in- 
tention to  give  a  plaintiff  costs,  by  certificate  of  the  judge,  for 
any  recovery  below  the  amount  which  would  carry  costs  ^^^.th- 
out  a  certificate,  or  where  he  recovered  exactly  five  pounds, 
the  latter  provision  was  construed  by  reading  "  less  than  "  as 
equivalent  to  "  not  exceeding."  *  By  the  effect  of  comparison 
with  the  context  bu^ds  w^ere  held  not  to  be  live  ammals.^  In 
another  case  a  minor,  with  living  parents,  was  held  to  be  an 
orphan  for  like  reason.^  In  a  Wisconsin  statute  the  word 
"  jury  "  was  construed  to  refer  to  "  one  or  more  credible  and 
disinterested  persons,"  sworn  by  an  officer  executing  a  writ  of 
replevin,  to  testify  as  to  the  value  of  the  property.'  A  statute 
which  authorized  a  town  to  pay  "  all  loans  made  in  good  faith  " 
was  held  to  authorize  the  payment  of  sums  voluntarily  advanced 
by  individuals  for  the  benefit  of  the  town.^  By  considering  the 
mischief  intended  to  be  remedied  by  an  act  providing  that  "  if 
any  person  shall  take  from  any  field  not  belonging  to  such  per- 

1  Caledonian  R'y  Co.  v.  North  British        3  Smith  v.  People,  47  N.  Y.  330. 
R'y  Co.  L.  E.  6  App.  Cas.  123 ;  Freme        4  Qarhy  v.  Harris,  7  Ex.  591. 

V.  Clement,  44  L.  T.  (N.  S.)  399 ;  L.  R        ^  Reiche  v.  Smythe,  13  Wall  162. 
18  Ch.Div.  499;  Walton,  Ex  parte,        **  Ragland  v.  The  Justices,  etc.  10  Ga. 

L.  R  17  Cli.  Div.  746 ;  United  States  65,  71. 
V.  Bassett,  2  Story,  399,  ■  WilUams  v.  IMcDonal,  3  Pin.  331. 

2  WilUams  v,  Ellis,  L.  R  5  Q.  B.  Div,        »  Weister  v.  Hade,  52  Pa.  St.  474. 
at  p.  176. 

21 


322  INTEEPKETATION    AND    CONSTRUCTION. 

son  any  cotton,  corn,  rice,  or  other  grain,  fraudulently,  wltli  the 
intent  secretly  to  convert  the  same  to  the  use  of  such  person," 
he  should  be  guilty  of  "  larceny,"  it  was  held  that  the  terms 
''  cotton,  corn,  rice,"  etc.,  embrace  those  articles  in  every  pos- 
sible form  and  variety  in  vs^hich  they  can  exist  in  a  field ;  that 
they  include  them  in  a  growing  and  unripe  state.^  An  act  was 
passed  incorporating  a  company  to  construct  a  road  from  a 
designated  point  in  the  city  of  Baltimore,  in  a  direct  line, 
about  due  north,  to  another  point  named,  but  it  was  forbidden 
to  lay  out  and  extend  the  road  through  the  buildings,  yards, 
or  orchards,  of  any  farm  without  the  consent  of  the  owner. 
It  was  held  that  the  act  was  passed  for  the  pubhc  convenience 
and  benefit ;  that  the  prohibitory  restriction  should  be  con- 
strued as  requiring  and  authorizing  a  deviation  or  change  in 
the  location  of  the  road  at  such  points  from  the  prescribed 
route,  to  prevent  a  cesser  of  the  corporate  franchise  in  case  the 
consent  of  the  owner  could  not  be  obtained.^ 

§  243.  A  bankruptcy  act  provided  that  all  the  property  ac- 
quired by  the  bankrupt  "  during  the  continuance  "  of  the  bank- 
ruptcy should  be  divisible  among  his  creditors.  It  provided, 
also,  that  he  might  obtain  his  discharge  not  only  at  the  close 
but  during  the  continuance  of  his  bankruptcy.  By  considering 
the  various  provisions,  it  was  construed  that  the  former  pro- 
vision should  be  read  in  substance  as  meaning  that  the  futm^e 
property  which  was  to  be  divisible  was  that  acquired  either 
during  the  continuance  of  the  bankruptcy  or  before  the  earlier 
discharge  of  the  bankrupt.^  James,  L.  J.,  said :  "  It  is  a  car- 
dinal principle  in  the  interpretation  of  a  statute,  that  if  there 
are  two  inconsistent  enactments,  it  must  be  seen  if  one  cannot 
be  read  as  a  quahfication  of  the  other."  *  An  act  to  prevent  in- 
jury from  "  furiously  driving  any  sort  of  carriage  "  was  held 
to  include  a  bicycle.'  A  statute  required  notice  to  a  surveyor, 
or  some  municipal  officer,  for  a  period  not  less  than  twenty- 
four  hours  prior  to  an  accident,  to  render  a  town  hable  for  an 
injury  fi'om  a  defect  in  a  highway.  This  requirement  was 
literally  absolute  by  the  terms  of  the  statute ;  but  it  was  held 

1  State  V.  Stephenson,  2  Bailey,  334        <Id. 

2  Charles  St  Ave.  Co.  v.  Merryman,  5  Taylor  v.  Goodwin,  L.  R  4  Q.  B. 
10  Md.  536.  Div.  228. 

»  Ebbs  V.  Boulnois,  L.  R.  10  Ch.  479. 


INTERPRETATIOX    AND    COXSTRL'CTION.  32S 

that  where  the  defect  was  caused  by  the  surveyor  wliile  act- 
ing as  agent  of  the  town,  such  notice  was  not  necessary ;  for 
the  purpose  of  the  act  did  not  require  notice  to  an  officer  of 
his  own  act.  Under  such  circumstances,  when  the  reason  of 
the  law  ceases,  the  law  ceases.^  A  statute  in  general  terms 
made  it  a  punishable  offense  for  any  person  to  carry  or  trans- 
port from  place  to  place  the  carcass  or  hide  of  any  of  the  ani- 
mals forbidden  to  be  killed  within  certain  periods.  By  con- 
struction, it  was  held  inapplicable  to  the  carrying  of  the  hide 
of  an  animal  during  that  period  if  it  had  been  killed  while  it 
"was  lawful  to  kill  it.  It  was  held  proper  to  decide  in  contra- 
vention of  the  terms  of  a  statute  when  necessary  to  reach  its 
spirit  and  obvious  intent."^  A  statutory  requirement  to  give 
notice  to  an  officer,  before  suit  brought,  "  for  anything  done, 
or  intended  to  be  done,"  under  the  authority  of  the  act,  was 
held  to  apply  to  a  non-feasance  for  things  omitted  to  be  done.' 
The  charter  of  a  cemetery  company  provided  that  a  certain 
number  of  acres  of  land  "  shall  be  forever  appropriated  and 
set  apart  as  a  cemetery,  which,  so  long  as  used  as  such,  shall 
not  be  liable  to  any  tax  or  public  imposition  whatever."  This 
was  held  not  to  apply  to  a  tax  levied  for  paving  a  street  in 
front  of  the  property ;  the  intent  was  to  exempt  the  property 
from  all  taxes  or  mipositions  for  purposes  of  revenue,  but  not 
to  relieve  it  from  such  charges  as  are  inseparably  incident  to 
its  location  in  regard  to  other  property.* 

§  244:.  A  statute  of  Missouri  provides  that  life  assurance 
companies  should  not  commence  or  continue  to  do  business 
until,  besides  complying  with  certain  regulations  touching 
their  capital,  they  shall  each  have  at  least  $100,000  of  capital 
paid  in  and  invested  in  the  stocks  or  bonds  of  the  state  of 
Missouri,  or  in  treasury  notes  or  stocks  of  the  United  States,  or 
in  notes  or  bonds  secured  by  mortgages  or  deeds  of  trust  on 
unincumbered  real  estate  worth  at  least  double  the  amount 
loaned  thereon,  etc.  This  provision  was  construed  to  requii'e 
"  the  morto^affes  or  deeds  of  trust "  to  be  taken  on  real  estate 

1  Holmes  v.  Paris,  75  Hkle.  559.  449 ;  Wilson  v.  Hafax,  L.  R   3  Ex. 

2  AUen  V.  Young,  76  Ma  80 ;  Com-  114 ;  Davis  v.  Cm-ling,  8  Q.  B.  286. 
inon wealth  v.  Hall,  128  Mass.  410.  *  INIayor,  etc.  v.  Green  Mount  Cem- 

3  Poulsum  V.  Tliirst,  L.  R.  2  C.  P.  etery,  7  Md  517.    See  Olive  Cemetery 

Co.  V.  Philadelphia,  93  Pa.  St  129. 


^24:  rNTEEPKETATION   AND   COXSTKUCTION. 

situate  in  Missouri.  The  statute  in  its  letter  was  silent  on 
this  point,  but  it  was  plainly  perceivable  that  its  object 
was  to  afford  ample  protection  and  indemnity  to  the  policy- 
holder ;  and  in  order  to  give  effect  to  that  intention,  the  court 
announce  and  proceed  upon  this  principle:  that  when  it  is 
plainl}^  perceivable  that  a  particular  intention,  though  not  pre- 
cisel}'  expressed,  must  have  been  in  the  mind  of  the  legislature, 
that  intention  will  be  enforced  and  carried  out  and  made  to 
control  the  strict  letter,^  Though  a  statute  gives  inaccurate 
names  to  things,  if  the  court  can  discern  its  meaning,  it  will 
so  expound  it  as  to  give  force  to  the  intention  of  the  legis- 
lature ;  thus,  it  seems  a  statutory  requirement  of  the  "  great 
seal  of  Great  Britain  (used  improperly,  since  the  old  great 
seal  was,  soon  after  the  union  with  Ireland,  destroyed  in  the 
presence  of  the  lord  chancellor)  is  substantially  satisfied  by 
the  use  of  the  great  seal  of  the  United  Kingdom.- 

§  24:5.  The  flexibility  of  words  and  clauses  to  harmonize 
with  general  intent. —  The  natural  import  of  words  is  their 
literal  sense ;  but  this  may  be  greatly  varied  to  give  effect  to 
the  fundamental  purpose  of  a  statute.'^  The  general  object  of 
a  statute  was  to  restore  uniformity  in  taxation  in  counties  and 
cities;  to  effect  this,  existing  laws  relating  to  incorporated 
towns  and  cities  had  to  be  repealed,  that  the  provisions  of 
the  act  applicable  in  terms  to  both  might  have  effect.  There 
was  a  repealing  clause  in  the  act  that  "  all  laws  requiring  any 
city  to  support  and  provide  for  its  paupers,  etc.,  are  hereby 
repealed."  One  question  which  came  before  the  court  was 
whether  the  clause  included  laws  so  providing  for  incorpo- 
rated towns;  the  decision  was  in  the  affirmative.  The  court 
followed  the  rule  laid  down  in  Mason  v.  Finch,*  that,  "  in  con- 
struing statutes,  courts  look  at  the  language  of  the  whole  act, 
and  if  they  find,  in  any  particular  clause,  an  expression  not  so 
large  and  extensive  in  its  import  as  those  used  in  other  parts  of 
the  statute,  if,  upon  a  view  of  the  whole  act,  they  can  collect  from 
the  more  large  and  extensive  expressions  used  in  the  other 
parts  the  real  intention  of  the  legislature,  it  is  their  duty  to 

1  State  V.  King,  44  Mo.  283.  Burke  v.  Monroe  Co.  77111.  610  ;:\'a:<)n 

2  Dwarris  on  St.  614 ;  Eex  v.  Bui-    v.  Finch,  2  Scam,  223. 
lock,  1  Taunt.  80.  '^  Supra. 

'Mclntyre  V.  Ingraham,  35  IVIiss.  25 ; 


INTERPRETATION   AND    CONSTRUCTION.  325 

give  effect  to  the  larger  expression."  The  court  say:  "Even 
if  the  word  city  was  not  sufficiently  comprehensive  to  embrace 
incorporated  towns,  yet  under  the  rule  announced  in  the  case 
[referred  to],  it  cannot  be  doubted  that  the  larger  and  more 
extensive  signilication  was  intended  by  the  use  of  the  word 
city."  ^  The  converse  is  illustrated  by  the  example  of  a  statute 
Avhich  required  a  notice  to  be  given,  under  which  undoubtedly 
either  a  written  or  verbal  notice  would  suffice.-  But  as  a  subse- 
quent section  required  the  notice  to  be  served  on  a  person,  or 
left  with  him,  thus  emplojing  words  implying  a  written  notice, 
the  notice  to  be  given  was  construed  to  mean  anotice  in  writ- 
ing.^ The  seemingly  incongruous  provisions  must  be  so  con- 
strued as  to  harmonize  with  the  general  intent  manifested  in 
the  whole  enactment.'* 

§  246.  The  literal  sense  not  controlling.—  The  mere  literal 
construction  of  a  section  in  a  statute  ought  not  to  prevail  if  it 
is  opposed  to  the  intention  of  the  legislature  apparent  by  the 
statute ;  and  if  the  words  are  sufficiently  flexible  to  admit  of 
some  other  construction  it  is  to  be  adopted  to  effectuate  that 
intention.'^  General  words  or  clauses  may  be  restricted  to 
effectuate  the  intention  or  to  harmonize  them  with  other  ex- 
pressed provisions.**  AYhere  general  language  construed  in  a 
broad  sense  would  lead  to  absurdity  it  may  be  restrained.'  The 
particular  inquiry  is  not  what  is  the  abstract  force  of  the 
words  or  what  they  may  comprehend,  but  in  what  sense  they 

I  Burke  v.  ivrouroe  County,  supra.  La.  Ann.  516 ;  Barker  v.  Esty,  19  Vt 

-  Vinton  v.  Builders',  etc.  Asso.  109  131,  139 ;  Simonds  v.  Powers,  28  id. 

lud.  351.  354;    PhiUips  v.  State,  15  Ga.   518; 

8  Wilson  V,   Nightingale,   8  Q.    B.  Thompson  v.  Farrer,  9  Q.  B.  Div,  372 ; 

1034;  Moyle  v.  Jenkins,  51  L.  J.  Q.  B.  State  v.  Weigel,  48  Mo.  29 ;  Clemenfr- 

113;  L.  R.  8  Q.  B.  Div.  116.  son  v.   Mason,   K   R   10  C.  P.  209; 

••  Commonwealth    v.  Conyngham,  Covington  v.  McNickle,  18  B.  Mon. 

66  Pa.  St.  99 ;  Wilkinson  v.  Lcland,  2  262 ;  Atkins  v.  Dismtegrating  Co.  18 

Pet.  637,  662.  .Wall.  372,  302 ;  Smith  v.  Adams,  5 

5  Caledonian  R'y  Co.  v.  North  Brit-  De Gex,  M.  & G.  712 ;  Dauo  v.  Railroad 

ish  R'y  Co.  L.  R.  6  App.  Cas.  114;  Co.  27  Ark.  564 ;  Powdiell  v.  Jones,  2 

Freme  v.  Clement,  44  L.  T.  (N.  S.)  399 ;  Smale  &  G.  407 ;  OUve  v.  Walton,  33 

L.  R  18  Cb.  Div.  499.     See  Holyland  Miss.  114 ;   W^illiams  v.  McDonal.   3 

V.  Lewin,  26  id.   266 ;   Walton,   Ex  Pin.  331 ;   Ayei-s  v.   Knox,   7  Mass. 

parte,  L.  R.  17  Ch.  Div.  756 ;  United  306 ;  City  of  San  Diego  v.  Granniss, 

States  v.  Bassett,  2  Story,  389.  77  Cal.  511. 

*  Commercial    Bank   v.   Foster,   5  "  People  v.  Davenport,  91  N.  Y.  574. 


326  INTEEPKETATION    AND    CONSTKUCTION. 

were  intended  to  be  used  as  they  are  found  in  the  act.  The 
sense  in  which  they  were  intended  to  be  used  furnishes  the 
rule  of  interpretation,  and  this  is  to  be  collected  from  the  con- 
text ;  and  a  narrower  or  more  extended  meaning  is  to  be  given 
according  to  the  intention  thus  indicated,^  In  an  act  provid- 
incr  for  raising  stat^  taxes,  railroads  were  taxed  on  the  basis  of 
passenger  traffic,  and  it  was  provided  that  every  railroad  pay- 
ing such  tax  should  not  be  assessed  "  with  any  tax  on  its  lands, 
buildings  or  equipments."  This  exemption  was  confined  to 
taxes  of  the  kind  provided  for  in  the  act,  and  was  held  not  to 
conflict  with  another  act  for  a  municipal  tax.^  A  pubhc  board, 
in  terms  authorized  to  adjust  all  claims  against  their  respective 
counties,  were  held  not  empowered  to  adjust  their  own ;  the 
general  power  was  construed  to  refer  to  claims  presented  to 
Siem  and  not  to  make  them  judges  in  their  own  cases.*  "When 
the  intent  is  plain,  words  and  even  parts  of  sentences  may  be 
transposed  to  carry  it  into  effect.*  Eestrictive  clauses  signifi- 
cant of  the  intent  in  certain  provisions  may  be  supphed  by 
intendment  in  others.^  General  words  do  not  always  extend 
to  every  case  which  literally  falls  within  them.^  When  the  in- 
tention can  be  collected  from  the  statute  itself,  words  may  be 
modified,  altered  or  supphed  so  as  to  obviate  any  repugnance 
or  inconsistency  with  such  intention.^  The  context  is  not  al- 
lowed to  change  the  effect  of  a  section  or  word  where  it 
appears  to  be  the  intention  that  it  should  be  hterally  construed ; 
in  other  words,  if  the  true  meaning  of  a  word  or  phrase  is  ap- 
parent from  the  section  in  which  it  occurs,  it  is  not  admissible 
to  go  outside  of  it  for  an  interpretation.* 

J-Mclntyre  v.  iBgraham,  35  IVIiss.  5  Bode  v.  State,  7  Gill,  328. 

25,    citing    IMitchell    v.    Mitchell,    5  6  Jeffei-ys  v.  Boosey,  4  H.  L.  815. 

Madd.  73 ;  Hotham  v.  Sutton,  15  Ves.  ^  Quin  v.  O'Keeffe,  10  Ir.  C.  L.  (N.  S.) 

320 ;  Stuart  v.  Earl  of  Bute,  3  id.  212.  393 ;  Brinsfield  v.  Carter,  2  Ga.  150 ; 

See  also  City  of  San  Diego  v.  Gran-  Wainewright,  In  re,  1  Phil.  258 :  Rice 

niss,  77  CaL  511.  v.  Raikoad  Co.  1  Black,  358 ;  Walton, 

2  Orange,  etc.  R.  R.  Co.  v.  Alexan-  Ex  parte,  L.  R.  17  Ch.  Div.  746. 
dria,  17  Gratt.  176 ;  Beawfage's  Case,  8  Spencer  v.   Metropohtan   Board, 
10  Coke,  99b.  L.   R   22  Ch.   Div.   162 ;  Egerton  t. 

3  Kennedy  v.  Gies,  25  Mich.  83.  Thkd  Mvmicipality,  1  La.  Ann.  435 ; 

4  Cunningham  v.  State,  2  Speers,  Depas  v.  Riez,  2  id.  30 ;  Warehouse 
246 ;  State  v.  Turnpike  Co.  16  Oliio  St.  Co.  v.  Lewis,  56  Ala.  514 :  Blackwood 
308.  See  Doe  v.  Considine,  6  WalL  v.  Queen,  L.  R.  8  A  pp.  Cas.  96 ;  Pitta 
458.  V.  Shipley,  46  Cai  154. 


INTEKPKETATOIX   AND    CONSTEUCTION. 


32T 


Illustrations  could  be  multiplied  indefinitely,  but  the  fore- 
going Avill  suffice.  The  curious  reader  will  find  a  variety  of 
new  applications  of  the  same  principle  in  the  cases  cited  be- 
low,' This  mode  of  construction  by  reference  to  the  subject- 
matter  and  purpose  of  a  statute  is  apphcable  to  all  statutes 
civil  and  crhninal.  If  there  is  an  express  declaration  of  the 
intent  and  meaning  of  the  statute  by  the  provisions  contained 
in  it,  aU  other  parts  of  the  act  are  controlled  in  construction 
to  serve  that  intent.- 

§  247.  Interpretation  of  words  and  phrases. —  Primarily  — 
that  is,  in  the  absence  of  anything  in  the  context  to  the  con- 
trary —  common  or  popular  words  are  to  be  understood  in  a 
popular  sense :  common-law  words  according  to  their  sense  in 
the  common  law ;  and  technical  words,  pertaining  to  any  sci- 
ence, art  or  trade,  in  a  technical  sense.''    It  is  a  famihar  rule 


1  MUbum  V.  State,  1  Md.  17 ;  State 
V.  King,  44  Mo.  283;  Crocker  v. 
Crane,  21  Wend.  211 ;  Gates  v.  Na- 
tional Bank,  100  U.  S.  239 ;  Attorney- 
General  V,  Kwok-A-Sing,  L.  R.  5  P. 
C.  179 ;  Brown  v.  Hamlett,  8  Lea,  732 ; 
Brown  v.  Barxy,  8  DalL  365 ;  Minor 
V.  Mechanics'  B'k,  1  Pet  46 ;  Binney 
V.  Canal  Co.  8  id.  201;  Kennedy 
V.  Kennedy,  2  Ala.  571;  Thompson 
V.  State,  20  id.  54;  Sprowl  v.  Law- 
rence, 33  id.  674;  Big  Black  Creek, 
etc.  Co.  V.  Commonwealth,  94  Pa. 
St  450;  Smith  v.  Randall,  6  Cal. 
47;  Ex  pai-te  Ellis,  11  id.  222;  Si- 
monds  v.  Powers,  28  Vt  354 ;  Burr  v. 
Dana,  22  Cal.  11 ;  Bell  v.  New  York, 
105  N.  Y.  139 ;  State  v.  Poydras,  9  La. 
Ann.  165 :  AUen  v.  Parish.  3  Ohio, 
198;  Keith  v.  Qvunney,  1  Or.  364: 
Reynolds  v.  Holland,  35  Ark.  56; 
Coffin  V.  Rich,  45  Me.  507 ;  Murray  v. 
R.  R.  Co.  4  Keyes,  274 ;  Jackson  t. 
Collins,  3  Cow.  89 ;  Holmes  t,  Paris, 
75  Me.  559;  Matthews  v.  Common- 
wealth, 18  Gratt  989;  Cearfoss  v. 
State,  42  Md.  406 ;  Learned  t.  Corley, 
43  Miss.  687 ;  Moyce  v.  Newingtou.  4 
Q.  B.  Div.  33 ;  AValton,  Ex  parte.  L.  R 
17  Ch.  Div.  756 ;  Caledonian  R'y  Co. 


V.  North  B.  R'y  Co.  L.  R  6  App.  Cas. 
122;  RusseU  v.  Farquhar,  55  Tex. 
355;  Gravett  v.  State,  74  Ga,  191 
Somerset  t.  Dighton,  12  Mass.  382 
Holbrook  t.  Holbrook,  1  Pick.  248 
Miller  v.  Salomons,  7  Ex.  475;  At- 
torney-General V.  Lockwood,  9  M.  & 
W.  398 ;  Becke  v.  Smith,  2  M.  &  W. 
195;  Wright  v.  Williams,  1  id.  99; 
Holhngworth  v.  Palmer,  4  Ex.  267 ; 
Reg.  V.  Spratley,  6  E.  &  B.  363; 
Crespigny  v.  Wittenoom,  4  T.  R. 
790 ;  Brewer  v.  Blougher,  14  Pet  178 ; 
Atkins  T.  Disintegrating  Co.  18  WalL 
272;  MaxweU  v.  Colhns,  8  Ind.  38; 
Larzelere  v.  Haubert,  109  Pa,  St  515 ; 
Sheetz  v.  Hanbest,  81  id.  100 ;  Wiener 
V.  Davis,  18  id.  331 ;  Jackson  v. 
Bradt,  2  Cai  169 ;  Packer  v.  Noble, 
103  Pa.  St  188 ;  Swift  v.  Tj-son,  16 
Pet  1;  "WTieeler  v.  McCormick,  8 
Blatchf.  267. 

-  Farmers'  Bank  v.  Hale,  59  N.  Y. 
53. 

sCull  v.  Austm,  L.  R.  7  C.  P.  234; 
Lion  Ins.  Asso.  v.  Tucker,  L.  R  13 
Q.  B.  D.  186:  Sehriefer  v.  Wood,  5 
Blatchf.  215:  Green  v.  Weller,  33 
Miss.  650 :  Wetumpka  v.  Winter.  29 
Ala.  651 ;  Quigley  v.  Gorham,  5  Cal. 


32S  INTEKPEETATION   AND    CONSTRUCTION, 

of  construction,  alike  dictated  by  authority  and  common  sense, 
that  common  words  are  to  be  extended  to  all  the  objects  which, 
in  their  usual  acceptance,  they  describe  or  denote ;  and  that 
technioal  terms  are  to  be  allowed  their  technical  meaning  and 
elTect,  unless  in  either  case  the  context  indicates  that  such 
construction  would  frustrate  the  real  intention  of  the  maker.^ 
They  should  be  construed  according  to  the  intent  of  the  legis- 
lature which  passed  the  act.  If  the  words  of  the  statute  are 
of  themselves  precise  and  unambiguous,  then  no  more  can  be 
necessary  than  to  expound  those  Avords  in  their  natural  and 
ordinary  sense.  The  words  themselves  do,  in  such  case,  best 
declare  the  intention  of  the  legislature.^  The  court  is  at  hb- 
erty  to  regard  the  state  of  the  law  at  the  time,  and  the  facts 
which  the  preamble  or  recitals  of  the  act  prove  to  have  been 
the  existing  circumstances  at  the  tune  of  its  preparation.* 
They  should  be  construed  with  reference  to  then-  generally 
accepted  meaning  at  the  time  of  the  passage  of  the  act,  and  if 
re-enacted  will  be  deemed  to  be  adopted  in  then-  original 
sense.'* 

§  248.  Words  and  phrases  should  be  construed  as  they 
are  generally  understood. —  In  the  construction  of  statutes  a 
word  which  has  two  significations  should  ordinarily  receive 

418 ;   Gross  v.  Fowler,  21  Cal.  392 ;  196 ;  Adams  v.  Turrentine,  8  Ired.  L. 

Evans  v.  SteverL=;  4  T.  R.  462 ;  Clark  147 ;   Apple  v.  Apple,  1  Head,  348 ; 

V.  Utica,  18  Barb.  451 ;  MorraU  v.  Sut-  Bestor  v.  Powell,  7  IlL  119 ;  Ttu-npike 

ton,  1  PliiL  533 ;  Cruger  v.  Cruger,  5  Co.  v.  State,  1  Sneed,  474 ;  Reg.  v. 

Barb.  225 ;  Jesson  v.  Wright,  2  Bligh,  Archbishop  of  Canterbury,  11  Q.  B. 

2 ;  Doe  t.  Harvey,  4  B.  «fe  C.  610 ;  Ab-  665. 

bott  V.  Mddleton,  7  H.  L.  68 ;  State  i  De  Veaux  v.  De  Veaux,  1  Strob. 

V.  aarksviUe,  etc.  Co.  2  Sneed,  88;  Eq.  283;    HaU,  Ex    parte,    1    Pick. 

Pahuer  v.  State,  7  Cold.  82 ;  Engel-  261 ;   State  v.  Smith,  5  Humph.  394 ; 

king  V.  Von  Wamel,  26  Tex.   469 ;  Brocket  v.  R.  R.  Co.  14  Pa.  St  241 ; 

Saltoun  V.  Advocate-General,  3  Maccj.  State  v.  Mayor,  etc.  35  N.  J.  L.  196. 

659 ;  Queen  v.  Castro,  L.  R.  9  Q.  B.  2  Sussex  Peerage,  11  CL  &  Fin.  85 ; 

360 ;  Parkinson  v.  State,  14  Md.  184 ;  Hyde  v.  Hyde,  L.  R.  1  P.  &  D.  134 

Martm   v.    Hunter,   1  Wheat    326;  3  Attorney-General  v.  Powis,  Kay, 

Georgia  v.  Atkins,  1  Abb.  (U.  S.)  22 ;  186. 

Philpott  V.  St.  George's  Hospital,  6  H.  *  Dawson  v.  Dawson,  23  Mo.  App. 

L.  Cas.  338 :  McCool  v.  Smith,  1  Black,  169 ;  St  Cross  v.  Howard,  6  T.  R  338 ; 

459 ;  The  Kate  Heron,  6  Sawyer,  106 ;  Smith  v.  Lindo,  27  L.  J.  C.  P.  200 ; 

United  States  v.  Jones,  3  Wash.  209 ;  4  C.  B.  (N.  S.)  395 ;  AVilson  v.  Knub- 

United  States  v.  Magill,  1  Wash.  463 ;  ley,  7  East,  136 ;  Montrose  Peerage,  1 

4    DalL   426;  Vincent   Ex  parte,  26  Macq.    406;   Aerated    Bread  Co.  v. 

Ala.  145 ;  Allen's  Appeal,  99  Pa.  St  Gregg,  L.  R  8  Q.  B.  355. 


INTERPRETATION    AND    CONSTEUCTION.  32'J- 

that  meaning  which  is  generally  given  to  it  in  the  community ; 
but  when  this  construction  would  contravene  the  manifest  in- 
tention of  the  legislature,  we  must  depart  fi'om  this  rule  and 
give  effect  to  the  intention.  A  vehicle  ^\'ith  four  wheels  drawn 
by  oxen,  suited  to  the  ordinary  purposes  of  husbandry,  and 
employed  in  the  same  uses  to  which  carts,  in  the  common 
acceptation  of  the  terra,  are  appropriated,  is  protected  from 
levy  and  sale  by  the  statute  which  exempts  "  one  horse  or  ox- 
cart" from  execution.'  The  words  of  a  statute  are  to  be  read 
in  their  ordinary  sense  unless  so  construing  them  will  lead  to 
some  incongruity  or  manifest  absurdity.'^ 

§  249.  How  general  words  construed. —  General  words 
should  receive  a  general  construction  unless  there  is  some- 
thing in  the  statute  to  restrain  them.*  When  from  the  pro- 
visions of  a  statute  it  is  clear  that  a  restraint  must  be  put  upon 
the  ordinary  and  literal  signification  of  some  word  or  expres- 
sion, and  it  is  uncertain  from  an3^thing  to  be  found  in  the  act 
itself  or  in  the  circumstances  judicially  cognizable  under  which 
the  provision  was  inserted,  what  the  exact  character  and  extent 
of  that  restriction  is,  it  is  the  duty  of  the  court  to  put  no 
greater  restriction  than  the  nature  of  the  provision  and  the 
subject-matter  to  which  it  relates  necessarily  impose.^ 

§  250.  Words  having  popular  and  technical  meaning. — 
Where  a  word  having  a  technical  as  well  as  a  ])opular  mean- 
ins:  is  used  in  the  constitution  or  a  statute  the  courts  wiQ  ac- 
cord  to  it  its  popular  signification,  unless  the  very  nature  of 
the  subject  indicates,  or  the  context  suggests,  that  it  is  used 
in  its  technical  sense.  Therefore  the  requirement  that  all 
bills  shall  be  read  on  three  several  days  is  taken  to  mean 
actual  readings.*  It  would  seem  that  popular  words  are  to  be 
construed  in  their  strict  and  primary  acceptation,  unless  it 
appears  from  the  context  that  they  were  used  in  a  different 
sense,  or  in  their  strict  sense  are  incapable  of  being  carried 
into  effect.^ 

1  Favei-s  V.  Glass,  22  Ala.  621.  » Weill   v.  Kenfield,  54  CaL   111; 

2  Collins  V.  Welch,  L.  R  5  C.  P.  Div.  People  v.  Tighe,  5  Hun,  25 ;  Opinion 
27 ;  State  v.  Desliler,  25  N.  J.  L.  177,    of  Justices,  7  Mass.  523. 

183.  6  Mallan  v.  May,  13  M.  &  W.  511, 

3  Jones  V.  Jones.  18  Me.  308,  313.  517. 
<  Sullivan  v.  Mitcalf e,  L.  R.  5  C.  P. 

Div.  455. 


S30  INTERPRETATION    AND    CONSTRUCTION. 

§  251.  A  statute  requiring  that  "  all  words  and  phrases  shall 
be  construed  and  understood  according  to  the  common  and 
approved  usage  of  language,"  etc.,  is  only  declaratory  of  a  part 
of  the  common  law  on  the  subject,  and  will  not  preclude  the 
operation  of  other  common-law  rules.  The  latter  are  of  equal 
dignity  and  importance,  and  may  be  invt^ked  to  give  effect  to 
the  legislative  intent.  A  general  statute  prohibiting  the  carry- 
ing of  concealed  weapons  was  qualified  by  a  provision  author- 
izing it  when  the  person  has  reasonable  grounds  to  beheve  his 
person,  or  the  person  of  some  of  his  family,  is  in  immediate 
danger  from  violence  or  crime.  As  the  hteral  sense  of  the 
word  unmediate  would  defeat  the  legislative  purpose  and  ren- 
der the  privilege  granted  worthless,  it  was  deemed  inadvert- 
ently used,  or  used  in  some  other  than  its  ordinary  sense ;  it 
was  held  that  the  provision  authorized  the  carrying  of  such 
weapons  when  there  was  believed  to  be  immediate  danger  of 
violence  or  crime  at  the  hands  of  another,  whenever  that  per- 
son is  present,  or  "  whenever  or  wherever  he  has  reasonable 
ground  to  apprehend  that  he  will  encounter  such  person  and 
be  exposed  to  the  apprehended  danger."  ^  Words  in  common 
use,  and  not  technically  employed,  in  a  statute  which  is  intended 
to  be  understood  and  practiced  upon  by  the  people,  should  be 
construed  according  to  their  popular  meaning ;  that  such  was 
the  intention  of  the  legislature  is  the  only  intendment  that 
ought  to  be  adopted.^ 

§  252.  The  popular  use  of  "  or  "  and  "  and"  is  so  loose  and  so 
frequently  inaccurate  that  it  has  infected  statutory  enactments. 
"While  they  are  not  treated  as  interchangeable,  and  should  be 
followed  when  their  accurate  reading  does  not  render  the 
sense  dubious,  their  strict  meaning  is  more  readily  departed 
from  than  that  of  other  words,  and  one  read  in  place  of  the 
other  in  deference  to  the  meaning  of  the  context.^ 

1  Bailey  v.  Commonwealth,  11  Bush,  41  id.  593 ;  State  v.  Smith,  46  id.  670 ; 
688.  People  v.  Sweetser,  1  Dak.  295 ;  State 

2  Strong  V.  Birchard,  5  Comi.  357,  v.  Custer,  65  N.  C.  339 ;  Barker  v. 
361 ;  Avery  v.  Pixley,  4  Mass.  460 ;  Esty,  19  Vt  131 ;  Sparrow  v.  David- 
Robinsou  v.  Varnell,  16  Tex.  382.  son  College,  77  N.  C.  35 ;  Rigoney  v. 

3  MetropoUtan  Board  of  Works  t.  Neiman,  73  Pa.  St  330 ;  Common- 
Steed,  L.  E.  8  Q.  B.  Div.  447 ;  Doug-  wealth  v.  Griffin,  105  Mass.  185 ; 
lass  V.  Eyre,  Gilpin,  148 ;  State  v.  Foster  v.  Commonwealth,  8  W.  &  S. 
Myers,  10  Iowa,  448 ;  State  v.  Brandt,  77 ;  Winterfield    v.    Stauss,  24  Wis. 


INTERPRETATION    AND    CONSTRUCTION. 


531 


§  253.  Woi'ds  having  a  special  sense  in  the  common  law. — 

Where  a  statute  uses  a  word,  which  is  well  known  and  has  a 
definite  sense  at  common  law  or  in  the  written  law,  without  de- 
fining it,  it  wlQ  he  restricted  to  that  sense,  unless  it  appears  that 
it  was  not  so  intended.'  If  the  word  heir  is  used  it  is  to  be 
so  interpreted,  and  must  be  taken  to  mean  one  capable  of  in- 


394,  406 ;  State  v.  MitcheU,  5  Ired.  L. 
350 ;  State  v.  MUes,  2  Nott  &  McCord, 
1 ;  State  v.  McCoy,  2  Speers,  711 ; 
Green  v.  Wood,  7  Q.  B.  178 ;  Fowler 
V.  Padget,  7  T.  R.  509 ;  Townsend  v. 
Read,  10  C.  B.  (N.  S.)  308 ;  Waterhouse 
V.  Keen,  4  B.  &  C.  200 ;  Newland  v. 
Marsh,  19  IlL  370 ;  Holland  v.  Com- 
monwealth, 82  Pa.  St.  306 ;  Blemer  v. 
People,  76  111  265 ;  State  v.  Pool,  74 
N.  C.  402 ;  Murray  v.  Keyes,  35  Pa. 
St  384,  391 ;  Union  Ins.  Co.  v.  United 
States,  6  Wall.  759 ;  Bolhn  v.  Sliiner, 
12  Pa.  St  205 ;  McConky  v.  Superior 
Court  of  Alameda  Co.  56  Cal  83; 
United  States  v.  Ten  Cases  of  Shawls, 
2  Paine,  162. 

iBuckner  v.  Real  Estate  Bank,  5 
Ark,  536 ;  Rives  v.  Guthiie,  1  Jones'  L. 
88;  McCool  v.  Smith,  1  Black,  459; 
Hillhouse  v.  Chester,  3  Day,  166; 
State  V.  Engle,  21  N.  J.  L.  347 ;  AUen's 
Appeal,  99  Pa.  St  196 ;  Brocket  v. 
Ohio,  etc.  R  R.  Co.  14  id.  241,  243 ; 
Adams  v,  Turrentine,  8  Ired.  L.  147 ; 
The  Kate  Heron,  6  Sa^vyer,  106; 
Apple  V.  Apple,  1  Head,  348 ;  State  v. 
Mace,  5  Md.  337;  United  States  v. 
Magill,  1  Wash.  463. 

A  claim  is,  in  a  jurichcal  sense,  "  a 
demand  of  some  matter  as  of  right 
made  by  one  person  upon  another,  to 
do  or  to  forbear  to  do  some  act  or 
thing  as  a  matter  of  duty."  Prigg  v. 
The  Commonwealth  of  Pennsylvania, 
16  Peters,  539,  615. 

In  the  same  case  Mr.  Justice  Story 
says:  "A  more  hmited,  but  at  the 
same  time  an  equally  expressive, 
definition  was  given  by  Lord  D^^er, 
as  cited  in  StoweU  v.  Zouch,  Plowden, 


359,  that  "  a  claim  is  a  challenge  by  a 
man  of  the  propriety  or  ownership  of 
a  thing  which  he  has  in  possession, 
but  which  is  wrongfully  detained 
from  him." 

"  In  its  ordinaiy  sense,"  said  Scott,  J., 
"  a  claim  imports  the  assertion,  de- 
mand or  challenge  of  sometliing  as  a 
right,  or  it  means  the  thing  thus  de- 
manded or  challenged.  Tlae  word,  as 
here  used,  is  by  implication  limited 
to  claims  against  the  state,  and  of  a 
pecuniary  character.  The  inhibition 
is  against  the  payment  of  any  money 
on  any  claim,  etc.  Claims  for  the 
payment  of  money  may  be  preferred 
against  the  state  on  various  groimds. 
They  may  be  either  of  a  legal  or  of 
an  equitable  character.  They  may 
pmport  to  ai-ise  under  existing  laws, 
or  to  originate  in  circumstances  which 
are  supposed  to  cast  ui^on  the  state  a 
duty,  either  of  perfect  or  imperfect 
obUgation,  to  provide  for  their  pay- 
ment All  such  demands  against  the 
state  for  the  payment  of  money,  what- 
ever be  their  character  or  origin,  axe, 
we  tliink,  claims  witliin  the  meaning 
of  the  constitiition."'  Fordyce  v. 
Gotlnian,  Auditor,  20  Ohio  St  1,  14. 

The  word  wilful  when  used  in  a 
statiite  creating  a  criminal  offense 
implies  the  doing  of  the  act  pm-posely 
and  deUberatelj'  in  violation  of  law. 
State  V.  Wliitener,  93  N.  C.  590 ;  State 
V.  Smith,  52  Wis.  134 ;  State  v.  Pres- 
ton, 34  id.  675. 

Distance  on  a  river  within  wliich 
no  other  bridge  may  be  built,  held  to 
be  measiu-ed  by  the  course  of  the  river. 
McLeod  V.  Burroughs,  9  Ga.  213. 


332  INTEKPKETATION   AND    CONSTKUCTION. 

heriting.^  The  -word  month  in  England  is  usually  construed  to 
mean  a  lunar  nionth.^  This  rule  was  followed  in  New  York.' 
But  the  word  month  is  not  a  technical  word,  and  courts  gen- 
eraU}"  lean  toward  that  construction  of  it,  as  of  other  popular 
words,  which  every  one  not  a  lawyer  would  put  upon  it.* 

In  Eshleman's  Appeal '  the  court  say :  "  Both  in  England  and 
America  it  has  been  held  that  the  word  '  child '  may  apply  to 
and  include  '  grandchild.'  The  Enghsh  statute  of  22  and  23  Car. 
IL,  ch.  10,  .  .  .  relating  to  distribution,  .  .  .  provides 
that  if  a  child  shall  be  advanced ;  yet  it  is  there  held  to  extend 
to  a  grandchUd,  the  father  being  dead.^  Grandchildren  and 
great-gi'andchildren  are  all  children  and  come  within  that  term 
for  certain  purposes."  It  is  allowed  by  all  that  if  no  children 
are  in  beino-  o-randchildren  come  in  under  the  word  children 
and  may  be  thereby  described.^  So  grandchildren  may  take 
under  the  description  of  children  in  a  will.^  In  a  trust  for  chil- 
dren it  was  held  grandchildren  were  entitled  to  participate."  ^° 

§  254.  Words  in  common  use,  and  also  having  a  technical 
sense,  will,  in  acts  intended  for  general  operation  and  not  deal- 
ing specially  with  the  subject  to  which  such  words  in  their 
technical  sense  apply,  be  understood  primarily  in  their  pop- 
ular sense,  unless  they  are  defined  in  the  act  or  a  contrary  in- 
tention is  otherwise  manifest."  Such  words,  however,  will  be 
understood  in  a  technical  sense  when  the  act  treats  of  the 
subject  in  relation  to  which  such  words  are  technically  em- 

1  State  V.  Engle,  21  N.  J.  L.  347.  CaL   393 ;   Mtchell  v.  Woodson,  37 


2  Rex  V.  Peckham,  Cartli.  406 
Lacon  v.  Hooper,  6  T.  R.  224,  226 
Castle  V.  Burditt,  3  id.  623 ;  Rex  v 


Adderley,    2    Doug.    462;    Catesby's    9,10,11 


Case,  6  Coke,  62 ;  2  Black.  Com.  141 
SLoring  v.  Hailing,  15  Jolm.  119 

Parsons  v.  Chamberlin,  4  Wend.  512 

See  Rives  v.  Guthrie,  1  Jones'  L.  88. 
*  Avery    v.   Pixley,  4    Mass.    460 

Churcliill  v.  Merchants'  Bank,  19  Pick, 


532 ;  Commonwealth  v.  Chambre,  4    Hargrove,  64  Tex.  110. 


DalL  143 ;  Kiml:)aU  v.  Lamson,  2  Vt 


Miss.  567. 

5  74  Pa.  St.  42,  46. 

6  1  Eq.  Ab.  381,  B.  pL  6 ;  382,  B.  pL  8, 


Wyth  V.  Blackman,  1  Ves.  Sr.  197. 

i*  Crooke  v.  Brookling.  2  Vern.  107 ; 
Wythe  V.  Thurston,  2  Ambler,  555. 

i*  Royle  V.  Hamilton,  4  Ves.  437. 

10  Crawhall's  Trust,  In  re,  8  De  G. 
Macn.  &  Gord.  480.     See  Burgess  v. 


iiCummings  v.   Coleman,   7  Rich. 


138;   Commonwealth  v.  Shorti-idge,  Eq.   509;     S.   C.   62  Am.   Dec.   402; 

3  J.  J.  Marsli.  638 ;  Williamson  v.  Far-  Schriefer  v.  Wood,   5  Blatclif.   215 ; 

row,  1  Bailey,  611 ;  Moore  v.  Houston,  Green  v.  Weller,  32  Miss.  650 ;  Park- 

3  Serg.  &  R.  169 ;  Gross  v.  Fowler,  21  iuson  v.  State,  14  Md.  184 


INTEEPRETATIOK    AND    CONSTKUCTION.  333 

ployed.  Thus  they  are  Icemed  technically  us?d  in  legislation 
relating  to  courts  and  legal  process.  Thus,  for  example,  the 
word  "  party  "  has  a  technical  significance.'  So  have  the  words 
"  action,"  "  suit "  -  and  "  final  judgment."  ^  But  by  the  cardinal 
rule  that  the  intention  of  the  law-makers  is  the  essence  of  the 
law,  when  a  technical  word  is  obviously  intended  to  have  a 
broader  than  its  strict  technical  sense,  it  will  receive  that  inter- 
pretation. In  McBride's  Appeal  *  the  word  "  actions  "  in  the 
provision  in  question  was  held  to  embrace  "  all  civil  proceed- 
ings of  whatever  kind,"  as  well  as  actions  technically  so  called.^ 
Technical  words  are  sometimes  used  in  statutes  in  a  popular 
sense.**  In  a  penal  statute,  where  it  is  sought  to  depart  from  the 
ordinary  meaning  of  the  words  used,  the  intention  of  the  legis- 
lature that  these  words  should  be  used  in  a  larger  or  more 
popular  sense  must  clearly  appear.'^  Prohibitory  statutes  must 
not  be  interpreted  on  a  principle  of  leniency ;  if  anything  done 
is  substantially  that  which  is  prohibited,  the  thing  is  void,  not 
because  of  its  tendency,  but  because  it  is,  within  the  true  con- 
struction of  the  statute,  the  thing  prohibited.^  If  a  word  is 
technical  and  used  in  a  technical  or  conventional  sense,  it  is  to 
be  construed  accordingly ;  but  its  interpretation  may  then  in- 
volve an  inquiry  into  its  technical  meaning  as  matter  of  fact. 
Such  laws  are  intended  for  practical  application  to  men  engaged 
in  avocations  in  which  the  words  have  acquired  a  special 
meaning  by  usage.  Such  statutes  are  to  be  construed  accord- 
ing to  the  conventional  understanding  of  the  terms  used.® 

1  Merchants'  Bank  v.  Cook,  4  Pick.        6  People  v.  Tighe,  5  Hun,  25,  27. 
405.  "  Stephenson  v.  Higginson,  3  H.  L. 

2  Belfast  V.  Fogler,  71  Me.  403 ;  Par-    Cas.  638. 

Bons  V.  Bedford,  8  Pet  433 ;  Holmes  8  PhUpott  v.  St  George's  Hospital, 

V.  Jennison,  14  id.  540,  546 ;   Calder-  6  H.  L.  Cas.  338. 

TFOod  V.  Est  of  Calderwood,  38  Vt  171.  » Elliott  v.  Swartsvout  10  Pet  137 ; 

3  Snell  V.  Bridgewater,  etc.  Co.  24  Two  Hundred  Chests  of  Tea,  9  "Wlieat 
Pick.  296,  299 ;  Weston  v.  Charleston,  430 ;  United  States  v.  Sarchet  Gilpin. 

2  Pet  464;  Holmes  v.  Jennison,  14  id.  273;  United  States  v.  112  Casks  of 
540,  562.  Sugar,  8  Pet  277 ;  Curtis  v.  Martin, 

•»  72  Pa.  St  480.    See  People  v.  May,    3  How.   106;  LawTence  v.  Allen,  7 

3  Mich.  598.  How.  785 ;  People  v.  Hulse.  3  Hill, 
5See  Coatsworth  T.  Barr.  11  Mich.     309;  Lee  v.   Lincoln,   1   Story,   610; 

199 ;  George  v.  Board  of  Education,  Att'y-Gen'l  v.  Bailey,  1  Ex.  281 ;  State 

33  Ga.  344;    King  v.  Pease.  4  B.  &  v.  Gupton,  8  Ired.  271 ;  United  States 

Ad.  80 ;  State  v.  ClarksviUe  &  R.  Turn-  v.  Breed.  1  Sumn.  159 ;  Moi-se  v.  State, 

pike  Co.  2  Sneed,  88.  6  Conn.  9 ;  Whart.  Com.  on  Am.  L. 


334  INTEKPEETATION   AJSTD    CONSTKUCTION. 

"  Acts  of  this  nature,"  says  Story,  J.,'  "  are  to  be  interpreted 
not  according  to  the  abstract  propriety  of  the  language,  but 
according  to  the  known  usage  of  trade  and  business  at  home 
and  abroad.  If  an  article  has  one  appellation  abroad  and  an- 
other at  home,  not  with  one  class  of  citizens  merely,  whether 
merchants,  grocers  or  manufacturers,  but  with  the  community 
at  large,  who  are  buyers  and  sellers,  doubtless  our  laws  are  to 
be  interpreted  according  to  that  domestic  sense ;  but  where 
the  foreign  name  is  well  known  here  and  no  different  appella- 
tion exists  in  domestic  use,  we  must  presume  that  in  com- 
mercial law  the  legislature  used  the  word  in  the  foreign  sense. 
And  so  in  reference  to  what  rule  ought  to  prevail  where  the 
article  is  known  by  one  name  among  merchants  and  by  an- 
other name  among  manufacturers  or  the  community  at  large, 
interpreting  the  legislative  meaning  in  the  traffic  act.  Con- 
gress, under  such  circumstances,  may,  perhaps,  be  fairly  pre- 
sumed to  use  it  in  the  more  general  and  the  more  usual  sense 
rather  than  in  that  which  belongs  to  a  single  class  of  citi- 
zens." 

§  255.  Statutory  use  of  words. —  A  word  repeatedly  used 
in  a  statute  will  bear  the  same  meaning  throughout  the  stat- 
ute, unless  a  different  intention  appears.^  The  intention  is 
obvious  to  use  the  word  marry  in  a  different  sense  from  that 
imphed  in  the  word  married  in  the  pro\dsion  fixing  a  penalty 
against  a  person  who  "  being  married  "  should  "  marry  "  again.^ 
"Where  words  have  been  long  used  in  a  technical  sense  and 
have  been  judicially  construed  to  have  a  certain  meaning,  and 
have  been  adopted  by  the  legislature  as  having  a  certain  mean- 
ing prior  to  a  particular  statute  in  which  they  are  used,  the 
rule  of  construction  requires  that  the  words  used  in  such  stat- 

§  604 ;  The  Dunebn,  L.  R.  9  P.  Div.  2  Rhodes  v.  Weldey,  46  Ohio  St. 

171 ;  Roosevelt  v.  Maxwell,  3  Blatclif.  234 ;  Pitte  v.  Shipley,  46  CaL  154, 160 ; 

391 ;  "  Gin,"  Webb  v.  Knight,  2  Q.  B.  Reg.  v.  Poor  Law  Commissioners,  6 

Div,  530 ;  Arthur  v.  Morrison,  96  U.  Ad.  &  E.  68 ;  Courtauld  v.  Legh,  L.  R. 

S.   108 ;    United  States  v.   Clement,  4  Ex.  126 ;  Smith  v.  Brown,  L.  R.  6 

Crabbe,  499 ;  Commonwealth  v.  Gilti-  Q.  B.  729 ;  Re  Kirkstall  Brewery,  5 

nan,  64  Pa  St  100  ;  Reg.  v.  Wood,  L.  Ch  Div.  535.    See  Coimty  Seat  Linn 

Rep.  4  Q.  B.  559 ;  Aerated  Bread  Co.  v.  Co.  15  Kan.  500. 

Gregg,  L.  R  8  Q.  B.  355.  *  Reg.  v.  AUen,  L.  R.  1  C.  C.  S67. 

1  United  States  v.  Breed,  1  Sumn- 
159. 


INTERPRETATION   AND   CONSTRUCTION.  335 

ute  should  be  construed  according  to  the  sense  in  which  they 
luive  been  so  previously  used,  although  that  sense  may  vary 
from  the  strict  literal  meaning  of  the  words.^  And  if  the  leg- 
islature use  words  which  have  received  a  judicial  interpreta- 
tion they  are  presumed  to  be  used  in  that  sense,  unless  the 
contrary  intent  can  be  gathered  from  the  statute.-  But  where 
the  same  language  is  not  preserved,  but  is  substantially  varied, 
it  shows  a  different  intention.^  And  so  the  context  may  show 
that  the  same  word  used  repeatedly  in  the  same  act  is  not  used 
in  the  same  sense.* 

§  256.  Chauge  of  phraseology  of  statute. — "  It  has  been  a 
general  rule,"  says  Blackburn,  J.,  "for  drawing  legal  docu- 
ments from  the  earliest  times,  which  one  is  taught  when  one 
first  becomes  a  pupil  to  a  conveyancer,  never  to  change  the 
form  of  words  unless  you  are  going  to  change  the  meaning ; 
and  it  would  be  as  well  if  those  who  are  engaged  in  the  prep- 
aration of  acts  of  parhament  would  bear  in  mind  that  that  is 
the  real  principle  of  construction."  ^  Whether  the  change  be  by 
omission,  addition  or  substitution  of  words,  the  principle  apphes.^ 
Every  change  of  phraseology,  however,  does  not  indicate  a 
change  of  substance  and  intent.     The  change  may  be  made  to 

1  Ruckmaboye  v.  Lulloobhoy  Mat-  Pa.  St  569,  573 ;  State  v.  Clark,  57 
tichand,  8  Moore,  P.  C.  4 ;  United  Mo.  25 ;  Reg.  v.  Pratt,  4  E.  &  B.  860. 
States  V.  Gibnore,  8  Wall.  330 ;  The  See  Coxson  v.  Doland,  3  Daly,  66 ; 
Abbotsf ord,  98  U.  S.  440 ;  WaUace  v.  State  v.  Smith,  46  Iowa,  670 ;  Winter- 
Taliaferro,  2  Call  (Va.),  389 ;  6  Bac.  field  v.  Stauss,  24  Wis.  394 ;  Leh- 
Abr.  379 ;  Campbell,  Ex  parte,  L.  R  5  man,  Durr  &  Co.  v.  Robinson,  59  Ala. 
Ch.  703 ;  State  v.  Brewer,  22  La.  Ann.  219 ;  Burgess  v.  Hargrove,  64  Tex.  110. 
273 ;  United  States  v.  Wilson,  Baldw.  *  Mc:Micken  v.  Commonwealth,  58 
78,  95 ;  McKee  v.  McKee,  17  Md.  352 ;  Pa.  St.  213. 

Woolsey  v.  Cade,  54  Ala.  378 ;  Countj-  » Hadley  v.  Perks,  L.  R  1  Q.  B.  457 ; 

Seat  of  Linn  Co.  15  Kan.  500 ;  WiU-  Dickenson  v.  Iletcher,  L.  R.  9  C.  P.  8 ; 

iams  V.  Lear,  L.  R.  7  Q.  B.  285.  Casement  v.  Fulton,  5  Moore's  P.  C. 

2  McKee   v.   McKee,   17  Md.  353;  141. 

Huddleston  v.   Askey,  56  Ala.  218 ;  « Lawrence  v.  King,  L.  R  3  Q.  B. 

Posey  V.  Pressley,  60  id.  243 ;  Daw-  345 ;  Reg.  v.  Bullock,  L.  R  1  C.  C.  117 ; 

son  V.  Dawson,  23  Mo.  App.  169.  EUot  v.  Hiuirod,  108  Pa,  St.  569,  573 ; 

3  Rutland  v.  Mendon,  1  Pick.  154,  Reg.  v.  Price,  L.  R  6  Q.B.  411 ;  West  v. 
156 ;  Wills  V.  Russell,  100  U.  S.  621 ;  Francis,  5  B.  &  Aid.  737 ;  Reg.  t.  Ing- 
Rich  V.  Keyser,  54  Pa,  St  86,  89 ;  ham,  5  B.  &  S.  257 ;  Bond  v.  RosUng, 
Buck  V.  Spofford,  31  Me.  34 ;  Pingree  1  id.  371 ;  Parker  v.  TasweU,  2  DeG.  & 
V.  Snell,  42  Me.  53 ;  Poe  v.  State,  85  J.  559 ;  Tidey  v.  Mollett,  16  C.  B.  (N.  S.) 
Tenn-  495;  Broaddus    v.    Broaddus,  298. 

10  Bush,  299 ;  EUot  v.  Himrod,  108 


336 


INTEEPKETATION    AND   CONSTEUCTION. 


express  more  clearly  the  same  intent  or  merely  to  improve  the 
diction.^  The  change  is  often  found  to  be  the  result  of  care- 
lessness or  slovenhness  of  the  draftsman.^  The  changes  of 
phi'aseology  may  result  from  the  act  being  the  production  of 
many  minds,  and  from  being  compiled  from  different  sources.' 
Hence  the  presumption  of  a  change  of  intention  from  a  change 
of  language  is  of  no  great  Aveight,  and  must  mainly  depend  on 
the  intrinsic  difference  as  resulting  from  the  modification.*  A 
mere  change  in  the  words  of  a  revision  will  not  be  deemed  a 
change  in  the  law  unless  it  apj)ears  that  such  was  the  inten- 
tion. The  intent  to  change  the  law  must  be  evident  and  cer- 
tain; there  must  be  such  substantial  change  as  to  import  such 
intention,  or  it  must  otherwise  be  manifest  from  other  guides 
of  interpretation,  or  the  difference  of  phraseology  will  not  be 
deemed  expressive  of  a  different  intention.*  Revisions  naturally 
involve  some  modifications  of  expression  to  bring  the  laws  mto 
system  and  uniformity. 

In  the  interpretation  of  re-enacted  statutes  the  court  will 
follow  the  construction  which  they  received  when  previously 


1  Hadley  v.  Perks,  L.  R.  1  Q.  B.  457 ; 
Ee  Wright,  L.  R.  3  Cli.  Div.  78 ;  Reg. 
Y.  Frost,  9  C.  &  P.  127, 

2  Re  Wood,  L.  R.  7  Ch.  306 ;  Reg.  v. 
Buttle,  L.  R.  1  C.  C.  250. 

3  EndUch  on  St.  §  378. 

*See  Hudston  v.  Mdland  R.  Co. 
L.  R  4  Q.  B.  366;  RoUe  v.  AVliyte, 
L.  R.  3  Q.  B.  305 ;  Slierborn  v.  WeUs, 

3  B.  &  S.  784;  Bosley  v.  Davies,  1 
Q.  B.  Div.  84 ;  Skmner  v.  Usher,  L.  R. 
7  Q.  B.  423 ;  Curtis  v.  Embery,  L.  R. 
7  Ex.  369 ;  Reg.  v.  South  Weald,  5  B.  & 
S.  391 ;  Jarman,  Ex  parte,  4  Ch.  Div. 
835;  Haldane  v.  Beauclerk,  3  Ex. 
658;  Montague  v  Smith,  17  Q.  B. 
688;  Cates  v.  Knight,  3  T.  R.  442; 
Murray  v.  Keyes,  35  Pa.  St.  384,  390 ; 
Rich  V.  Keyser,  54  id.  86 ;  Reg.  v.  Pratt, 

4  E.  &  B.  860 ;  Read  v.  Edwards,  17 
C.  B.  (N.  S.)  245. 

5  Landf  ord  v.  Dunklin,  71  Ala.  594 ; 
Dudley,  Adm'r,  v.  Steele,  id.  423 ;  Re 
Brown,  21  Wend.  316 ;  Yates'  Case,  4 
John.    318;    Domick    v.  Michael,  4 


Sandf.  374 ;  Theriat  v.  Hart,  2  HiU, 
380 ;  People  v.  Demmg,  1  Hilt.  271 ; 
Coxson  V.  Doland,  2  Daly,  66  •  Cros- 
weU  V.  Crane,  7  Barb.  191 ;  Hoffman 
V.  Dehhanty,  13  Abb.  Pr.  388 ;  Doug- 
las V.  Douglas,  5  Hun,  140.  Parra- 
more  v.  Taylor,  11  Gratt.  220,  242; 
Hughes  V.  Farrar,  45  Me.  72 ;  Trigg 
V.  State,  49  Tex.  645;  Overfield  v. 
Sutton,  1  Mete.  (Ky),  621 ;  Allen  v. 
Ramsey,  id.  635 ;  Dm-amus  v.  Har- 
rison, 26  Ala.  326 ;  Anthony  v.  State, 
29  Ala.  27 ;  McNamara  v.  R.  R.  Co.  12 
Minn.  388 ;  Gaston  v.  Merriam,  33  id. 
271;  Glass  v.  State,  30  Ala.  529; 
Biunham  v.  Stevens,  33  N.  H.  249 ; 
Bradley  v.  State,  69  Ala.  318 ;  Cham- 
bers V.  Carson,  2  Wliart.  9 ;  Common- 
wealth V.  Rainey,  4  W.  &  S.  186; 
Smith  V.  Smith,  19  Wis.  522 ;  Conger 
V.  Barker,  11  Oliio  St.  1 ;  Fosdick  v. 
Perrysburg,  14  Ohio  St.  472 ;  Ennis  v. 
Crump,  6  Tex.  34 ;  Mc]\Iicken  v.  Com- 
monwealth, 58  Pa,  St  213 ;  Smith  v. 
MitcheU,  Rice  (S.  G),  315. 


INTERPRETATION    AND   CONSTRUCTION.  S37 

in  force.  The  legislature  will  be  presumed  to  know  the  effect 
which  such  statutes  originally  had,  and  Ijy  re-enactment  to  in- 
tend that  they  should  again  have  the  same  effect.^  So  statutes 
originally  enacted  in  another  state,  when  adopted,  are  deemed 
to  be  taken  with  the  settled  construction  given  them  in  the 
state  from  which  they  are  copied.^ 

§  257.  Otlier  statutes  adopted  by  general  reference.— 
When  so  adopted,  only  such  portion  is  in  force  as  relates  to 
the  particular  subject  of  the  adopting  act.=*  Such  adoption 
does  not  include  subsequent  additions  or  modifications  of  the 
statute  so  taken  unless  it  does  so  by  express  intent.*  Xor 
wall  the  repeal  of  the  statute  so  adopted  affect  its  operation  as 
part  of  the  statute  adopting  it.^  The  effect  may  be  thus  com- 
prehensively stated:  Where  a  statute  is  incorporated  in  an- 
other, the  effect  is  the  same  as  if  the  provisions  of  the  former 
were  re-enacted  in  the  latter,  for  all  the  purposes  of  the  latter 
statute ;  and  the  repeal  of  the  former  statute  does  not  repeal 
its  provisions  so  far  as  they  have  been  incorporated  in  an  act 
which  is  not  repealed,  w^here  the  adoption  was  for  the  purpose 
of  providing  for  a  subject-matter  not  within  the  original  stat- 

1 0'Byrnes    v.   State,   51    Ala.   25 ;  242 ;  People  v.  Irvin,  21  Wend  128 

Roundfcree,  Ex  parte,  id.  42 ;  Posey  v.  Kirkpati'ick  v.  Gibson,  3  Brock.  388 

Pressley,  60  id.  243 ;  State  v.  Brewer,  Harrison  v.    Sager,    27    Midi.    476 

32  La.  Ann.  274;  Huddleston  v.  As-  Daniels  v.  Clegg,  28  id.  32;  Greiner  v, 

key,  56  Ala.  218 ;  McKee  v.  McKee,  17  Klein,    id.    17 ;    Attorney-General 

Md.  352 ;  Jenkins  v.  Ewin,  8  Heisk.  Brunst,  3  Wis.  787 ;  Pike's  Estate,  45 

456 ;  Morrison  v.  Stevenson,  69  Ala.  id.  391. 

448;  Matthews,  Ex  parte,  52  id.  51;  3  Jones  v.  Dexter,  8  Fla.  270;  Mat- 

Woolsey  v.  Cade,  54  id.  378 ;  Harriag-  thews  v.  Sands,  29  Ala.  136. 

ton  V,  Smith,  28  Wis.  43.  4  Darmstaetter  v.  Moloney,  45  Midi. 

2  jMorgan  v.  Davenport,  60  Tex.  230 ;  621 ;  Sdilaudecker  v.  ]\IarshaU,  72  Pa. 

Munson  v.   HalloweU,   26  Tex.  475 ;  St.  200 ;  United  States  v.  Paul,  6  Pet. 

Trigg  V.  State,  49  id.  645 ;  Snoddy  v.  141 ;  KendaU  v.  United  States,  12  icL 

Cage,  5  id.  106 ;  Brothers  v.  MundeU,  524 ;  Nunes  v.  Wellisch,  12  Bush,  363 ; 

60  id.  240 ;  Hess  v.  Pegg,  7  Nev.  23 ;  In  re  Comm'i-s  of  Lunatic  Asylums, 

Carney  v.  Hampton,  3  T.   B.   Mon,  8  Irish  Rep.,  Eq.  series,  366 ;  Knapp 

331 ;  Botanico-Med.  CoUege  v.  Atclii-  v.  Brooklyn,  97  N.  Y.  520 ;  Re  INIam  St 

eon,  41  ]\Iiss.  188 ;  Jessup  v.  Carnegie,  98  id.  454 ;  State  v.  Davis,  22  La.  Ann. 

80  N.  Y.  441 ;  Leonard  v.  Columbia  N.  77.    See  AUen,  Ball  &  Co.  v.  Mayor, 

Co.  84  N.  Y.  48 ;  IMarqueze  v.  Caldwell.  9  Ga.  286, 

48  Miss.  33 ;  Ingraham  v.  Regan,  23  id  5  Clarke  v.  Bradlaugh,  L.  R  8  Q.  B. 

213 ;  Parramore  v.  Taylor,  11  Gratt  Div.  69. 
23 


o3S  INTERPRETATION   AND   CONSTRUCTION. 

lite.*  "  It  is  a  sound  rule  of  construction,"  said  Lord  Denman, 
C.  J.,  .  .  .  "  applicable  to  modern  as  well  as  ancient  stat- 
utes, perhaps  even  more  so  from  necessity  in  consequence  of 
the  looseness  of  expression  which  now  prevails,  that '  in  con- 
struction of  general  references  in  acts  of  parliament,  such 
reference  must  be  made  as  will  stand  with  reason  and  right.' "  ^ 
In  deciding  whether  words  of  reference  are  to  be  understood 
in  the  largest  or  in  the  narrowest  sense,  whether  they  extend 
to  the  whole  or  to  a  part  only  of  any  act,  the  court  considers 
the  subject-matter  of  the  section  in  which  such  words  are 
found,  and  contrasts  it  with  that  of  the  preceding  sections.^ 
Thus,  where  a  section  which  dealt  with  a  new  subject  used 
the  words  "  nothing  hereinbefore  contained,"  it  was  held  that 
the  reference  was  confined  to  matters  contained  in  that  sec- 
tion and  did  not  extend  to  earlier  portions  of  the  act.* 

§  258.  Interpretation  with  reference  to  grammatical 
sense. —  Statutes  as  well  as  other  writings  are  to  be  read  and 
understood  primarily  according  to  their  grammatical  sense,, 
unless  it  is  apparent  that  the  author  intended  something  dif- 
ferent. In  other  words,  it  is  presumed  that  the  writer  in- 
tended to  be  understood  according  to  the  grammatical  purport 
of  the  language  he  has  employed  to  express  his  meaning.' 
This  presumption  gives  way  when  it  appears  from  a  perusal 
of  the  context  or  the  whole  statute  that  the  legislature  did  not 
grammatically  express  its  intention.^  It  is  only  one  rule  of 
interpretation  to  foUow  the  grammatical  sense  when  it  does 
not  appear  to  conflict  with  the  true  intent.''  A  statute  entitled 
a  man  to  be  registered  as  a  voter  who,  on  or  before  a  certain 
date,  has  paid  "  aU  poor  rates  that  have  become  payable  by 

1  In  re  Comm'rs  of  Lvmatic  Asylums,  M.   &  W.  191;    Everett    v.  Wells,  3 

8  Irish  Eep.,  Eq.  series,  366 ;  Reg.  v.  Man.  &  Gr.  269 ;  Richards  v.  McBride, 

Stock.  8  Ad.  &  E.  405.  L.  R.  8  Q.  B.  Div.  119 ;  Smith  v.  BeU, 

-'Reg.  V.  Badcock,  6  Q.  B.  787,  at  10  M.  &  W.  378;  CuU  v.  Austm,  L.  R. 

p.  797.  7  C.  P.  234 ;  Att'y-Gen'l  v.  Lockwood, 

3  WUb.  on  St.  187.  9  M.  &  W.  398 ;  Waugh  v.  Middleton^ 

■*  Id. ;    In   re    Cambrian   R'y   Co.'s  8  Ex.  356 ;  Chvistophersen  v.  Lotinga, 

Scheme,  L.  R.  3  Cli.  278.  33  L.  J.  C.  P.  123 ;  15  C.  B.  (N.  S.)  809. 

5  Dame's  Appeal,  62  Pa.  St.  417, 422 ;  6  George  v.  Board  of  Education,  33 

Macdougall  v.  Paterson,  11  C.  B.  755,  Ga.  344. 

709 ;  Warburton  v.  LoveLand,  1  Hud-  '  Fisher  v.  Connard,  100  Pa  St.  63, 

son  &  Brooke,  648 ;  Becke  v.  Smith,  2  69. 


INTERrRETATION   AND    CONSTKUCTION.  339 

him  up  to  another  earlier  day."  It  appeared  that  the  person 
in  question  had  paid  all  the  rates  of  the  current  year,  but  had 
been  excused,  on  account  of  poverty,  from  paying  a  rate  that 
had  been  payable  in  the  preceding  year.  The  argument  against 
his  right  to  be  registered,  based  on  the  strict  grammatical 
sense,  was  adopted.  "  ISTo  doubt,"  said  "Willes,  J.,  "  the  general 
rule  is  that  the  language  of  an  act  is  to  be  read  according  to 
its  ordinary  grammatical  construction,  unless  so  reading  it 
would  entail  some  absurdity,  repugnance  or  injustice.  .  .  . 
But  I  utterly  repudiate  the  notion  that  it  is  competent  t(^  i 
judge  to  modify  the  language  of  an  act  in  order  to  bring  it  iiv 
accordance  with  his  views  of  what  is  right  or  reasonable.""  "' 
Jarvis,  C.  J.,  says  that  it  is  the  golden  rule  of  constructicHi 
"  to  give  to  words  used  by  the  legislature  their  plain  and  nat- 
ural meaning,  unless  it  is  manifest  from  the  general  scope  and 
intention  of  the  statute  that  injustice  and  absurdity  would  re- 
sult from  so  construing  them."  ^  Burton,  J.,  in  "Warburton  v. 
Loveland,^  probably  states  the  principle  correctly  and  com- 
prehensively with  the  accepted  qualifications :  "  I  apprehend 
it  is  a  rule  in  the  construction  of  statutes  that,  in  the  first 
instance,  the  grammatical  sense  of  the  words  is  to  be  adhered 
to.  If  that  is  contrary  to  or  inconsistent  with  any  expressed 
intention,  or  any  declared  purpose  of  the  statute ;  or  if  it  would 
involve  any  absurdity,  repugnance  or  inconsistency  in  its  dif- 
ferent provisions,  the  grammatical  sense  must  then  be  modi- 
fied, extended  or  abridged,  so  far  as  to  avoid  such  inconven- 
ience, but  no  farther."  * 

§  259.  It  is  better  always  to  adhere  to  a  plain,  common-sense 
interpretation  of  the  words  of  a  statute  than  to  apply  to  them 
a  refined  and  technical  grammatical  construction.*  It  is  not 
always  safe  to  assume  that  the  draftsman  of  an  act  understood 
the  rules  of  grammar.^  Neither  bad  grammar  nor  bad  lan- 
guage will  vitiate  a  statute.'^    The  act  of  24  and  25  Vict., 

lAbel  V.  I.ee,  L.  R  6  C.  P.  371 ;  sGyger's   Estate.   65   Pa.   St   311; 

Hardc.  on  St.  31.    See  People  v.  Hill,  Williams  v.  Evans,  L.  R,  1  Ex.  Div. 

3  Utali,  334.  277 ;  Miller  v.  Salomons,  7  Ex.  553. 

2  Mattison  v.  Hart,  14  C.  B.  385.  6  Fisher  v.  Connard,  100  Pa.  St  63> 

s  1  Hudson  &  Brooke,  648.  69. 

*  Becke  v.  Smith,  2  M.  &  W.  191 ;  'Kelly  v.  McGuire,  15  Ark.  555. 
King  V.  Pease,  4  B.  &  Ad.  30,  40 ;  Ey- 
Bton  V.  Studd,  3  Plow.  46a 


3i0  INTERPKETATION   AND    CONSTKUCTION. 

ch.  109,  sees.  24  and  25,  enacts  that  "  Any  person  acting  in  con- 
travention of  this  section  shall  forfeit  all  fish  taken  by  him,  and 
any  net  used  hy  him  in  taking  the  same.''^  In  a  case  in  which  no 
fish  had  been  caught  the  grammatical  sense  was  insisted  upon 
as  the  true  sense,  and  that  there  was  no  forfeiture  of  the  net ; 
but  the  court  construed  the  words,  "  used  by  them  in  taking 
the  same,"  to  mean  "used  for  the  purpose  of  taking  the 
same."  ^  A  relative  word  will  not  be  read  as  representing  the 
last  antecedent  exclusively,  where  the  sense  of  the  context  and 
clear  intention  of  the  law-maker  requires  it  to  represent  sev- 
eral or  one  more  remote.'-  The  grammatical  rule,  which  is 
also  the  legal  rule,  in  construing  statutes,  was  held  to  be  that, 
where  general  words  occur  at  the  end  of  a  sentence,  they  refer 
to  and  quahfy  the  whole ;  while,  if  they  are  in  the  middle  of 
a  sentence,  and  sensibly  apply  to  a  particular  branch  of  it,  they 
are  not  to  be  extended  to  that  which  follows."  The  words 
"whilst  on  duty"  fixed  the  scope  and  operation  of  aU  the 
clauses  of  the  following  provision :  "  ^o  person  holding  ofiice 
under  this  act  shall  be  liable  to  mihtary  or  jury  duty,  nor  to 
arrest  upon  civil  process,  or  to  service  of  subpoenas  from  civil 
courts  whilst  actually  on  duty ; "  *  and  the  same  effect  was 
given  to  it  after  amendment  by  substituting  or  for  nor  where 
itahcised.'  An  act  expressed  in  words  of  the  future  tense  may 
stUl  show  an  intent  to  have  a  present  eilect.  Thus,  an  act 
declaring  "  that  twenty-five  thousand  acres  of  land  shall  be 
allowed  for  and  given  to  Major-General  Nathaniel  Greene " 
was  held  to  be  an  absolute  donation,  to  be  consummated  by 
the  allotment  provided  for  therein.  "Given  when?"  says 
Chief  Justice  Marshall,  interrogatively.  "  The  answer  is  una- 
voidable:  when  they  shall  be  allotted.  Given  how?  Not  by 
any  future  act ;  for  it  is  not  the  practice  of  legislation  to  enact 
that  a  law  shall  be  passed  by  some  future  legislature;  but 
given  by  force  of  this  act."  ^ 

1  Ruther  v.  Harris,  L.  R.  1  Ex.  Div.  *  Hart  v.  Kennedy,  14  Abb.  Pr.  432 ; 
97.  on  appeal,  15  id.  290. 

2  Fisher  v.  Connard,  supra;  Gyger's  ^  Coxson  v.  Doland,  2  Daly,  66. 
Estate,  65  Pa.  St.  311 ;  State  V.  Jemi-  6  Rutherford   v.  Green's    Heirs,  2 
gan,  3  Mui-ph.  18 ;  Simpson  v.  Robert,  Wlieat.  196,  198.    See  Ludington  v. 
35  Ga.  180.  United  States,  15  Ct  of  CL  453 ;  Mays- 

s  Rex  V.  Inhabitants  of  Shipton,  8    viUe,  etc.  R  R  Co.  v.  Herrick,  13  Bxish, 
B.  &  C.  94 ;  Dwar.  on  St  703.  122,  125. 


INTERPRETATION    AXD   CONSTRUCTION.  341 

§  2G0.  Mistakes  may  be  corrected  hy  aid  of  the  context. — 

Legislative  enactments  are  not  any  more  than  any  other  writ- 
ings to  be  defeated  on  account  of  mistakes,  errors  or  omissions, 
provided  the  intention  of  the  legislature  can  be  collected  from 
the  whole  statute ;  and  the  title  and  preamble  may  be  referred 
to  for  this  purpose.^  "Where  a  law  possessing  all  the  requisites 
of  a  valid  statute  is  passed,  containing  clear  requirements  ca- 
pable of  being  carried  into  effect,  in  connection  with  other 
statutes  on  the  same  subject,  a  mistaken  reference  to  them 
"will  not  defeat  the  will  of  the  legislature  and  render  it  void. 
Thus,  where  an  act  purporting  to  be  an  amendment  of  another 
act  describes  it  truly  except  that  it  incorrectly  states  the  date, 
the  erroneous  statement  will  be  treated  as  surplusage  or  cor- 
rectcsd  by  construction.^  So  references  to  other  sections  or 
statutes  incorrectly  made  will  be  corrected  where  the  context 
or  other  particulars  identifies  the  statute  or  provision  intended 
and  enables  the  court  to  follow  the  reference  with  certainty.* 
Where  one  word  has  been  erroneously  used  for  another,  or  a 
word  omitted,  and  the  context  affords  the  means  of  correction, 
the  proper  word  will  be  deemed  substituted  or  supplied.*  This 
is  but  making  the  strict  letter  of  the  statute  yield  to  the  obvious 

1  Nazi-o  V.  lilerchants'  I^Iut  Ins.  Co.  *  Quin  v.  O'KeefTe,  10  Ir.  C.  L.  (N.  S.) 
14  Wis.  295 ;  State  v.  McCracken,  42  393 ;  People  v.  Hotf man,  97  111.  234 ; 
Tex.  383.  State  v.  Brandt,  41  Iowa,  593 ;  Hedley, 

2  Madison,  etc.  P.  R.  Co.  v.  Ray-  Ex  parte,  31  Cai  108;  People  v.  Sweet- 
nolds,  3  Wis.  287 ;  School  Directors  v.  ser,  1  Dak.  295 ;  Peck  v.  WeddeU,  17 
School  Du-ectors,  73  lU.  249 ;  State  v.  Oliio  St  271 ;  Palms  v.  Shawano 
McCracken,  42  Tex.  383 ;  Pue  v.  Het-  Co.  61  AVis.  211 ;  Donohue  v.  Ladd,  31 
zell,  16  Md.  539 ;  Poock  v.  Lafayette  Minn.  244 ;  State  v.  Pool,  74  N.  C, 
Bdg.  Asso.  71  Ind.  357.  See  Blake  v.  402 ;  Haney  v.  State,  34  Ark.  263 
Brackett,  47  Me.  28 ;  Watervliet  T.  Tm-ner  v.  State,  40  Ala.  21 ;  Vance  v, 
Co.  V.  McKean,  6  Hill,  616.  See,  also,  Gray,  9  Bush,  656 ;  Eolland  v.  Com 
Hicksv.  Jamison,  10  Mo.  App.  35.  mon wealth,    82     Pa.    St.    306,    326; 

» Commonwealth    v.    Marshall,  69  Blemer  v.  People,  76  IlL  265 ;  Fowler 

Pa.  St.  332 ;  Shrewsbury  v.  Boylston,  v.  Padget,  7  T.  R.  509 ;  Rex  v.  :\Iort- 

1  Pick.   105 ;   Bradbmy  v.   Wagen-  lake,  6  East,  397 ;  Graham  v.  Char- 

horst,  54  Pa.  St  180,  183 ;  People  v.  lotte,  etc.  R.  R  Co.  64  N.  G  631 ;  Com- 

Eang,  28  Cal.  265,  273 ;  People  v.  Hill,  mon  wealth  v.  HaiTis.  13  Allen,  534 : 

3  Utah,  334 ;  Custin  v.   City  of  Vi-  Foster  v.   Commonwealth,  8  Watts 

ioqua,67Wis.  314;  Murray  v.  Hobson,  &  S.  77;  Waugh  v.  Middleton,  8  Ex. 

10  Colo.  66 ;  Winona  v.  Wliipple,  24  352 ;  Waterford  v.  Hensley,  Mart  & 

Mum.  61 ;  People  v.  Clute,  50  N.  Y.  Yerg.  (Tenn.)   275.    See  Angele   de 

451.  Sentamanat  v.  Soiile,  33  La.  Ann.  609. 


1,42  INTEEPRETATIOX    AJSTD    CO^^STKUCTION. 

intent.  So  words  which  are  meaningless  or  inconsistent  with 
the  intention  otherwise  plainly  expressed  in  an  act  have  some- 
times been  rejected  as  redundant  or  surplusage.^  If  a  condi- 
tion or  qualifying  clause  has  been  misplaced,  so  that  in  the 
connection  where  it  is  inserted  it  is  absurd  or  nonsensical,  the 
court  will  apj)ly  it  to  its  proper  subject  and  give  it  effect  if 
the  statute  affords  the  proper  clues,  and  it  can  be  done  in 
furtherance  of  its  obvious  intent.^  But  where  the  language  read 
in  the  order  of  clauses  as  passed  presents  no  ambiguity,  courts 
will  not  attempt  to  qualify  it  by  any  transposition  of  clauses 
and  from  what  it  can  be  ingeniously  argued  was  a  general  in- 
tent.^ "Where  the  provisions  of  a  law  are  inconsistent  and  con- 
tradictory to  each  other,  or  the  hteral  construction  of  a  single 
section  would  conflict  with  every  other  following  or  preced- 
ing it,  and  with  the  entire  scope  and  manifest  intent  of  the 
act,  it  is  certainly  the  duty  of  the  courts,  if  it  be  possible,  to 
harmonize  the  various  provisions  with  each  othei;;  and  to  effect 
this,  it  may  be  necessary,  and  is  admissible,  to  depart  from  the 
literal  construction  of  one  or  more  sections.* 

§  261.  To  enable  the  court  to  insert  in  a  statute  omitted 
words  or  read  it  in  different  words  from  those  found  in  it,  the 
intent  thus  to  have  it  read  must  be  plainly  deducible  from 
other  parts  of  the  statute.^    When  the  descriptive  words  con- 

1  United  States  v.  Rossvally,  3  Ben.  gian,  4  B.  &  S.  249 ;  Woodbury  v. 
157 ;  State  v.  Acuff,  6  Mo.  54 ;  United  Berry,  18  Oliio  St  456 ;  Wills  v.  Rus- 
States  V.  Stern,  5  Blatch.  512 ;  Chap-    seU,  100  U.  S.  621. 

man  v.  State,  16  Tex.  App.  76 ;  State  In  Richards  v.   McBride,  L.  R.   8 

V.  Beasley,  5  Mo.  91 ;  State  v.  Heman,  Q.  B.  119,  the  question  was  the  mean- 

70  Mo.  441.  ing  of  "  the  day  next  appointed."    It 

2  State  V.  Turnpike  Co.  16  Oliio  St.  was  contended  that  it  meant  "  the 
308,  320.  next  appomted  day."  Grove,  J. :  "  No 

3  Doe  T.  Considine,  6  WaU.  458.  one  in  constniing  a  statute  or  any 

4  State  V.  Heman,  supra.  other  literary  production  could  put 

5  Fairchild  v.  Masonic  HaU  Asso.  71  such  a  construction  on  the  words  un- 
Mo.  520, 532 ;  Hicks  v.  Jamison,  10  Mo.  less  by  supposing  there  was  a  mis- 
App.  35 ;  Douglass  v.  Eyre,  Gilp.  147 ;  take.  But  we  cannot  assume  a  mis- 
De  Sentamanat  v.  Soiile,  33  La.  Ann.  take  in  an  act  of  parUament  If  we 
609 ;  Reg.  v.  Phillips,  L.  R.  1  Q.  B.  did  so  we  should  render  many  acts 
648;  Reg.  v.  Shiles,  1  Q.  B.  919;  uncertain  by  putting  different  con- 
Blanchard  v.  Sprague,  3  Sumn.  279 ;  structions  on  them  according  to  our 
Wright  V.  Frant,  4  B.  &  S.  118 ;  Lane  individual  conjectures.  The  drafts- 
T.  Schorap,  20  N.  J.  Eq.  82 ;  Ford  v.  man  of  this  act  may  have  made  a 
Ford,  143  Mass.   577 ;  Reg.  v.   Llan-  mistaka     If  so  the  remedy  is  for  the 


INTERPKETATION    A.ND   CONSTRUCTION.  34^ 

stitute  the  very  essence  of  the  act,  unless  the  description  is  so 
clear  and  accurate  as  to  refer  to  the  particular  subject  in- 
tended, and  be  incapable  of  being  applied  to  any  other,  the 
mistake  is  fatal.'  A  statute  prohibited  the  sale  of  liquor 
"  within  three  miles  of  Mt.  Zion  church,  in  Gaston  county." 
There  were  two  churches  of  that  name  in  that  county,  several 
miles  apart.  This  statute  was  held  ambiguous  and  therefore 
inoperative.^  It  was  remarked  by  the  court  that  it  "may  not 
allow  conjectural  interpretation  to  usurp  the  place  of  judicial 
exposition.  There  must  be  a  competent  and  efficient  expres- 
sion of  the  legislative  will."  "  Whether  a  statute  be  a  pubhc 
or  private  one,"  says  Chief  Justice  Euffin,  "  if  the  terms  in 
which  it  is  couched  be  so  vague  as  to  convey  no  definite  mean- 
ing to  those  whose  duty  it  is  to  execute  it  ministerially  or  ju- 
dicially, it  is  necessarily  inoperative.  The  law  must  remain 
as  it  was,  unless  that  which  professes  to  change  it  be  itself  in- 
telligible." 3 

§  262.  Effect  of  context  and  associatiou  of  words  and 
phrases. —  K'ot  only  are  words  and  provisions  modified  to 
harmonize  with  the  leading  and  controlling  purpose  or  inten- 
tion of  an  act,  but  also  by  comparison  of  one  subordinate  part 
with  another;  that  is  to  say,  the  sense  of  particular  words 
or  phrases  may  be  greatly  influenced  by  the  context,  or  their 
association  with  other  words  and  clauses.   When  two  or  more 

legislature  to  amend  it.  But  we  must  if  there  were  no  words  in  tlie  act 

construe  acts  of  parliament  as  they  tending  sti'ongly  the  other  way,   I 

are,  without  regard  to  consequences,  could  pass  from  the  plain  gi-ammat- 

except  in  those  cases  whei-e  the  words  ical    construction  of  the  plu-ase  in 

are  so  ambiguous  that  they  may  be  question.     The  onus  of  showing  that 

construed  in  two  senses;  and  even  the  words  do  not  mean  what  they 

then  we  must  not  regard  what  hap-  say  lies  hearily  on  tlie  party  who  al- 

penedin  parhament,  but  look  to  what  leges  it    He  must,  as  Parke,  B.,  said 

is  withm  the  four  comei-s  of  the  act,  in  Becke  v.  Smith,  2  M.  &  W.  195,  ad- 

and  to  the  grievance  intended  to  be  vance  sometliing  wliich  clearly  shows 

remedied,  or,  in  penal  statutes,  to  the  that  the    grammatical  cousti-uction 

offense    intended    to    be    corrected.  Avould  be  repugnant  to  the  intention 

Taking  the  words  the  '  day  next  ap-  of  the  act  or  lead  to  some  manifest 

pointed'  to    mean    what  they  say,  absm-ditj'." 

viz. :  the  day  which  shall  be  next  ap-  i  Blanchard  v.  Sprague,  suprcu 

pointed,  is  there  anything  in  the  act  2  state  v.   Partlow,  91  N.   C.  550 ; 

itself    to  show  that  the  legislature  S.  C.  49  Am.  Rep.  653. 

meant  'the  next  day  appointed?'    I  3 Drake  v.  Drake,  4  Dev.  110. 
find  nothing.     I  even  doubt  whether. 


344  INTEKPEETATION    AND    CONSTRUCTION. 

"words  are  grouped  together,  and  have  ordinarily  a  similar 
meaning,  but  are  not  equally  comprehensive,  they  will  qualify 
each  other  when  associated ;  they  may  import  a  conventional 
sense  and  have  great  scope  when  so  used  without  restriction 
in  the  context,  and  they  may  be  capable  of  widely  different 
applications  when  specialized  by  accompanying  provisions  ex- 
pressive of  a  particular  intention  or  limited  application.^  The 
expression,  for  instance,  of  "  places  of  public  resort  "  assumes 
a  very  different  meaning  when  coupled  with  "  roads  and 
streets  "  from  that  which  it  would  have  if  the  accompanying 
expression  was  "  houses."  ^  In  an  enactment  respecting  houses 
"  for  public  refreshment,  resort  and  entertainment,"  the  last 
word  was  understood  to  refer  to,  not  a  theatrical  or  musical  or 
other  similar  performance,  but  something  contributing  to  the  en- 
joyment of  the  "  refreshment."  ^  By  an  act  for  clearing,  watch- 
ing and  regulating  the  streets  of  a  township,  the  commissioners 
were  authorized  to  ascertain  the  sum  to  be  raised  by  rates  or 
assessments  on  the  several  inhabitants,  and  to  raise  such  sums 
by  rate  or  assessment  upon  the  tenants  and  occupiers  of  all 
messuages,  houses,  warehouses,  shops,  cellars,  vaults,  stables, 
coach-houses,  brew-houses  and  other  buildings,  gardens  and 
grounds,  and  other  tenements  in  the  township.  It  was  held 
that  under  this  act  the  trunks  and  pipes,  works  and  other  ap- 
paratus of  a  water  company,  for  the  supply  of  the  town  with 
water,  did  not  constitute  a  tenement  within  the  meaning  of  the 
act,  and  therefore  the  company  were  not  liable  to  be  rated  in  re- 
spect of  such  property.  The  word  tenement  was  used  in  other 
provisions  of  the  act  to  denote  buildings.  "  These  are  some 
of  the  instances,"  says  Bayley,  J.,  "  in  which  the  word  tene- 
ment is  used  in  this  act ;  and  from  these  instances  and  the 
object  of  the  act,  it  may  be  collected  in  what  sense  it  uses  that 
word.  The  omission  to  use  the  obvious  and  general  word 
'  lands,'  and  yet  introducing  '  gardens  and  garden  grounds,^ 

1  Bear  Brothers   v.  Marx,  63  Tex.  M.  C.  193 ;  Sewell  v.  Taylor,  29  id.  50 ; 
298;  Moeller  v.  Harvey,  16  PhUa.  66.  7   C.  B.  (N.  S.)  160;  Case  v.  Storey, 

2  Endlich  on  St.  §  400,  citing  for  L.  R.  4  Ex.  319 ;  Skinner  v.  Usher, 
examples,  In  re  Jones,  7  Ex.  586 ;  21  L.  R.  7  Q.  B.  423 ;  Reg.  v.  Charlesworth, 
L.  J.  M.  C.  116 ;  In  re  Brown,  id.  113,  2  Lowndes,  M.  &  P.  117 ;  Wilson  v. 
Reg.  V.  Brown,  17  Q.  B.  833 ;  Ex  parte  HaUfax,  L.  R.  3  Ex.  114. 
Freestone,  25  L.  J.  M.  C.  121 ;  Davys  »  Endlich  on  St.  §  400 ;  Muir  v. 
T.  Douglas,  4  H.  &  N.  180 ;  28  L.  J.  Keay,  L.  R.  10  Q.  B.  594. 


INTEKPEETATION    AXD   CONSTRUCTION.  345- 

implies  that  '  lands '  in  general  are  not  intended  to  be  rated. 
The  object  of  the  act  was  to  give  security  and  accommodation 
to  the  residents  and  to  their  property.  The  inhabited  houses, 
therefore,  and  everything  connected  with  residence  or  trade, 
as  they  have  the  advantage,  were  to  be  liable  to  the  charge. 
The  houses,  warehouses,  shops  and  all  other  buildings  were  to 
be  rated,  because  they  all  had  protection.  But  why  were  gar- 
dens and  garden-grounds  to  be  included  if  lands  in  general 
were  not?  Possibly,  because  the  produce  thereof  was  of  value, 
and  was  a  possible  object  of  depredation,  and  the  general  light- 
ing and  watching  of  the  town  would  give  so  much  additional 
protection  to  this  species  of  property  as  might  properly  make 
it  the  subject  of  charge.  Gardens,  therefore,  and  garden- 
grounds  may,  on  this  account,  be  distinguished  from  other 
descriptions  of  land,  and  may  be  subjected  to  this  charge, 
whilst  land  in  general  is  exempt.  Pasture  ground,  for  in- 
stance, stone  quarries,  and  other  kinds  of  real  property,  though 
included  in  the  43d  Elizabeth  as  affording  income,  and  supply- 
ing, therefore,  the  means  of  contribution,  are  omitted  in  this 
act,  because  such  property  derives  no  equivalent  or  material 
protection  from  it."  ^  A  statute  provided  "  that  every  person 
who  shall  be  brought  before  any  of  the  said  magistrates  charged 
with  having  in  his  possession  or  conveying  in  any  manner  any- 
thing which  may  be  reasonably  suspected  of  being  stolen  or 
unlawfully  obtained,  and  who  shall  not  give  an  account  to  the 
satisfaction  of  such  magistrate  how  he  came  by  the  same,  shall 
be  deemed  guilty  of  a  misdemeanor."  This  was  held,  on  ac- 
count of  the  associated  words  and  context,  to  apply  only  to 
possession  in  the  streets,  and  not  to  possession  in  a  house. 
"  Taken  by  themselves  alone,"  said  Blackburn,  J.,  "  the  words 
'  having  in  his  possession,'  of  course  include  the  case  of  a  per- 
son having  in  his  possession  at  any  time,  in  any  manner  or  in 
any  place.  But  here  we  have  them  in  connection  with  the 
words,  or  conveying  in  any  manner  anything  wliich  may  h& 
reasonably  suspected  of  being  stolen  or  obtained.  ...  I 
think  the  words  of  the  statute  sufficiently  show  that  the  legis- 
lature intended  to  confer  this  summary  power  only  in  the  case- 
where  the  person  was  '  having  and  conveying '  in  the  sense  of 

1  Reg.  V.  Mancliester,  etc.  Water-works  Co.  1  B.  &  C.  630. 


346  INTERPRETATION   AND   CONSTRUCTION. 

'having'  ejusdem  generis  with  'conveying,'  being  in  the  streets 
or  roads  with  them,  or  carrying  them  about."  ^ 

§  2(>3.  The  controlling  effect  in  construction  of  associated 
words  is  well  illustrated  in  Schenley's  Appeal.-  The  question 
was  the  existence  of  a  mechanic's  lien  on  a  dwelling-house  under 
a  statute  providing  for  a  hen  on  ''''improvements^  engines, 
pumps,  machinery,  screens  and  fixtures  erected,  rej^aired  or 
put  in  by  mechanics,  persons  or  material-men  entering  liens 
thereon."  Agnew,  J.,  said :  "  Though  the  word  Hmjyrovements'* 
is  large  enough  under  ordinary  cu^cumstances  to  include  a 
house  or  private  dwelhng,  it  is  manifest,  by  its  connection  in 
this  act  with  the  words  engines,  pumps,  etc.,  and  by  the  two 
counties  to  which  it  was  originally  made  apphcable,  that  the 
word  was  not  intended  to  authorize  the  creation  of  hens  upon 
ordinary  houses  and  dwellings  of  tenants  independently  of  the 
works  indicated  by  the  other  expressions  used  in  connection 
with  the  word  improvements."  ^  In  a  revenue  act  it  was  pro- 
vided in  one  section  that  "  every  railroad  company,  steamboat 
company,  canal  company  and  slackwater  navigation  company, 
and  all  other  na^dgation  companies  doing  business  in  this  state, 
and  upon  whose  works  freight  may  be  transported,  whether  by 
such  company  or  by  individuals,  and  whether  such  company 
shall  receive  compensation  for  transportation,  for  transporta- 
tion and  toU,  or  shall  receive  tolls  only,  except  turnpike,  plank- 
road  and  bridge  companies,  .  .  .  shall  pay  a  tax  as  upon 
tonnage."  The  next  section  provided  that,  in  addition  to  the 
taxes  provided  for  as  aforesaid,  every  raiboad,  canal  and  trans- 
portation company  Hable  to  a  tax  on  tonnage  under  the  pre- 
ceding section  shall  pay  a  certain  tax  on  gross  receipts.     The 

1  Hadley  v.  Perks,  L.  R.  1  Q.  B.  444.  it  be  said  that  the  word  '  surveyor ' 

-  70  Pa.  St.  98.  limits  and  defines '  agent,'  we  answer, 

3  Where  it  appeared  that  an  insiir-  not  any  more  than  '  agent '  hmits  and 

ance  company  constituted  a  person  defines  '  surveyor ; '  in  other  words, 

named  its  agent,  and  there  was  no  either  includes  the  duties  and  powers 

definition    of  his  powers,  the  word  of  both;   the  agent  is  sxu-veyor  and 

"  agent,"  it  was  held,  should  be  taken  the  svu-veyor  is  agent ;  one  ofiicer  is 

in  its   general  signification,  and  as  clothed  with  the  powers  necessary  to 

embracing  all  powers  wliich  the  com-  fiU  both  offices."    Lycoming  F.  Ins. 

pany  might  confer  on  one  whom  it  Co.  v.  Woodworth,  83  Pa.  St.  223.   See 

selected  to  represent  it.     He  was  au-  Central  Trust  Co,  v.  Sheffield  &  B. 

thorized  to  act   as  "  agent  or  sur-  Coal,  etc.  Co.  43  Fed.  Eep.  106. 
veyor,"  and  the  court  remarked :  "  If 


INTEHl'KETATK^N    AND    CoN^TKLCTION.  347 

preceding  section  had  not  used  the  phrase  "transportation 
company,"  but  had  simply  designated  some  companies  by 
name,  and  designated  others  as  companies  upon  whose  works 
freight  might  be  transported  as  the  means  of  bringing  all  under 
a  liabihty  for  the  tonnage  carried  over  their  work,  whether 
carriers  themselves  or  not.  "When  the  phrase  "  transportation 
companies  "  was  used  in  the  subsequent  section  it  was  a  nomen 
collectivum  to  embrace  all  the  companies  which  had  been  de- 
scribed in  the  other  section,  and  was  intended  to  include  all 
steamboat,  slackwater  navigation  and  other  companies  "  upon 
whose  works  freight  may  be  transported."  ^ 

§  264.  Where  a  statute  was  indefinite  and  obscure,  the  court, 
in  view  of  all  the  indications  afforded  by  the  context,  construed 
this  proviso  as  apphcable  only  to  the  tenant :  "  That  no  appeal 
shall  lie  in  the  case  of  rent,  but  the  remedy  by  replevin  shall 
remain  as  heretofore."  ^  The  literal  terms  of  a  statute  prohib- 
ited any  hen  as  against  purchasers  and  mortgagees  by  four 
species  of  judicial  acts  and  proceedings,  viz. :  (1)  Judgments ; 
(2)  recognizances ;  (3)  executions  levied  on  real  estate,  and  (4) 
^vrits  of  scire  facias  to  revive  or  have  execution  of  judgments, 
unless  the  same  were  indexed  as  prescribed.  All  of  these  acts 
and  proceedings  were  within  the  function  of,  and  indeed  peculiar 
to,  the  court  of  common  pleas,  and  all,  save  one,  were  exclu- 
sively cognizable  and  possible  in  that  court.  The  recognizance 
was  known  in  the  orphans'  court,  as  it  was  in  the  criminal  court, 
but  the  others  were  not.  But  the  recognizance  is  also  a  form  of 
obligation  known  to  the  practice  of  the  common  pleas,  and,  there- 
fore, where  it  is  coupled  with  other  acts  and  proceedings  of 
that  court,  the  whole  being  subject  to  a  regulation  common  to 
all,  it  is  not  necessary  to  infer  that  it  is  used  in  any  other  than 
its  natural,  associated  sense.  Therefore,  it  was  held  that  re- 
cognizances taken  in  the  orphans'  court  to  operate  as  hens  were 
not  required  to  be  indexed.  ^  The  word  "  records  "  may  be  re- 
strained by  the  context  to  mean  only  those  in  the  office  of  reg- 
isters of  deeds.^  In  a  marine  policy  the  underwriters  insured 
against  the  wrongful  acts  of  individuals  under  the  description 
of  -'  pirates,  rogues,  thieves,"  and  it  also  insured  against  loss  by 

1  Commonwealth  v.  Monongahela  ^  Holman's  Appeal,  106  Pa,  St  503. 
Nav.  Co.  66  Pa.  St.  81.  <  Carter  v.  Peak,  138  Mass.  439. 

2  Hilke  V.  Eisenbeis,  104  Pa,  St  514. 


348  INTERPKETATION    AXD    CONSTKUCTION. 

arrests,  etc.,  by  "  all  kings,  princes  and  jpeojple?''     The  word 
people  was  construed  to  mean  the  power  of  the  country.^ 

§  265.  A  statute  of  limitations  as  to  a  claim  to  any  way  or 
other  easement,  or  to  any  water-course,  or  the  use  of  any 
water,  to  be  enjoyed  or  derived  upon,  over  or  from  any  "  land 
or  water,"  does  not  include  the  servitude  of  allowing  "  the 
streams  and  currents  of  air  and  wind  to  pass  over  land  to  a 
mill."  -  It  points  to  a  right  belonging  to  an  individual  in  re- 
spect of  his  land,  not  a  class  such  as  freemen  or  citizens  claim- 
ing a  right  in  gross  wholly  irrespective  of  land,*  It  was 
enacted  that  "  any  tenement  or  part  of  a  tenement  occupied  as 
a  house  for  the  purpose  of  trade  only,  or  as  a  warehouse  for 
the  sole  purpose  of  lodging  goods,  wares  or  merchandise 
therein,  or  as  a  shop  or  counting-house,  shall  be  exempt "  from 
certain  duties.  It  was  held  on  the  maxim  noscitur  a  sociis, 
that  the  business  of  a  telegraph  company  is  a  trade  within  the 
meaning  of  that  statute.^  The  word  "  dehvery,"  being  asso- 
ciated in  a  bankrupt  act  with  "  gift  or  transfer,"  was  held  to- 
be  confined  to  transactions  of  the  same  nature ;  that  to  be 
a  delivery  it  must  purport  to  part  with  some  property  or  in- 
terest in  the  goods  delivered,  to  amount  to  an  act  of  bank- 
ruptcy.^ A  carriers'  act,  providing  for  mitigation  of  the 
responsibility  of  carriers,  contained  an  enumeration  of  articles 
within  its  provisions,  among  which  were  "  paintings,  engrav- 
ings, pictures ; "  and  a  question,  arose  whether  colored  imita- 
tions of  rugs  and  carpets  and  working  designs,  each  of  them 
valuable  and  designed  by  skilled  persons  and  hand-j^ainted,  but 
having  no  value  as  works  of  art,  were  included  within  that 
provision.  It  was  decided  that  they  were  not.  The  word 
"paintings,"  being  associated  with  "  engravings  and  pictures," 
was  to  be  understood  as  meaning  paintings  valuable  as  works 
of  art.  This  conclusion  was  deemed  to  be  in  accord  with  the 
general  or  popular  meaning  of  the  word.^ 

1  Nesbitt  V.  Lushington,  4  T.  R.  <  Chartered  MercantUe  Bank,  etc.  v. 
783.  WHson,  L.  R.  3  Ex.  D.  108. 

2  Webb  V.  Bird,  10  C.  B.  (N.S.)  268;  5  Cotton  v.  James,  Mood.  &  Mai. 
S.  C.  13  id.  841 ;  Bryant  v.  Lefever,  4  278 ;  Isitt  v.  Beeston,  L.  R.  4  Ex.  159. 
C.  P.  Div.  172.  6  Woodward  v.  London,  etc.   Ry 

3  Mounsey  v.  Ismay,  3  H.  &  C.  at  Co.  3  Ex.  D.  121. 
p.  497. 


INTERPRETATION    AND   CONSTRUCTION.  349 

§  2G6.  When  two  words  or  expressions  are  coupled  together, 
one  of  which  generically  includes  the  other,  it  is  obvious  that 
the  more  general  term  is  used  in  a  meaning  excluding  the  spe- 
cific one.^  A  revenue  act  of  congress  exempted  from  duty 
"  animals  of  all  kinds ;  birds,  singing,  and  other,  and  land  and 
water  fowls."  A  later  act  levied  a  duty  of  twenty  per  cent. 
"  on  all  horses,  mules,  cattle,  sheep,  hogs  and  other  live  ani- 
mals." It  was  held  that  birds  were  not  included  in  the  term 
^'  other  live  animals  "  as  used  in  the  later  act.-  "  This  act  of 
1S61,"  said  Mr.  Justice  Davis,  "  was  in  force  when  the  act  of 
1SG6  —  the  act  in  controversy  —  was  passed,  and  it  will  be  seen 
that  birds  and  fowls  are  not  embraced  in  the  term  '  animals,' 
and  that  they  are  free  from  dut}^,  not  because  they  belong  to 
the  class  of  '  living  animals  of  all  kinds,'  but  for  the  reason  that 
they  are  especially  designated.  It  is  quite  manifest  that  con- 
gress, adopting  the  popular  signification  of  the  word  '  animals,' 
applied  it  to  quadrupeds,  and  placed  birds  and  fowls  in  a  dif- 
ferent classification.  Congress  having,  therefore,  defined  the 
word  in  one  act,  so  as  to  limit  its  application,  how  can  it  be 
contended  that  the  definition  shaU  be  enlarged  in  the  next  act 
on  the  same  subject,  when  there  is  no  language  used  indicat- 
ing an  intention  to  produce  such  a  result?  Both  acts  are  'i)i 
j)ari  materia'  and  it  will  be  presumed  that  if  the  same  word 
be  used  in  both,  and  a  special  meaning  were  given  it  in  the 
first  act,  that  it  was  intended  it  should  receive  the  same  inter- 
pretation in  the  later  act,  in  the  absence  of  anything  to  show 
a  contrary  intention."  ^ 

§  267.  Relative  and  qualifying  words  and  plirases. —  Eel- 
ative  and  quahfying  words  and  phrases,  grammatically  and 
legally,  where  no  contrary  intention  appears,  refer  solely  to 
the  last  antecedent.*     A  proviso  is  construed  to  apply  to  the 

1  EndL  §  396 ;  Rex  v.  Cowell,  2  East  Asso.  v.  Commonwealth,  98  Pa,  St 

P.  C.  617 ;  Rex  v.  Loom,  1  Moo.  C.  C.  54,  65 ;  Dick's  Appeal,  106  Pa.  St.  589. 
160 ;  Dewluu-st  v.  FeUden,  7  M.  &  G.        2  Reidie  v.  Smythe,  13  Wall.  162. 
182 ;  Peto  V.  West  Ham,  2  E.  &  E.        s  Id. 

144 ;  Reg.  v.  Midland  R.  Co.  4  E.  &  B.        <  Fowler  v.  Tuttle,  24  N.  H.  9 ;  State 

958 ;  Lead  Smelting  Co.  v.  Richard-  v.  Brown,  3  Heisk.  1 ;  Ellis  v.  ]Murra.y, 

son,  3  Bm-r.  1341 ;  Rex  v.  Sedgloy,  2  28  ]\Iiss.  129 ;  Cushing  v.  Worrick,  9 

B.  &  Ad.  65 ;  Rex  v.  Cimningham,  5  Gray,  383 ;  Gyger's  Estate,  65  Pa.  St. 

East,  478 ;  Morgan  V.  Crawshay,  L.  R.  311;  Fisher  v.  Connard,  100  id.  63; 

5  H.  L.  304 ;    Bourguignon  Building  Staniland  v.  Hopkins,  9  M.  &  W.  178. 


350  INTEKPKETATION   AND    CONSTRUCTION. 

proYision  or  clause  immediately  preceding.^   "Where  the  bj^-laws 
of  a  society  provided  first  for  an  annual  meeting  for  the  election 
of  officers,  and  then  for  a  monthly  meeting  on  a  specified  day 
«  at  half-past  seven  o'clock,  P.  M.,"  it  was  held  that  the  clause 
specifying  the  hour  of  meeting  had  reference  only  to  the 
monthly  meeting.^    The  intention  is  sufficiently  obvious  in  the 
following  provision  for  the  establishment  of  Kbraries,  without 
recourse  to  any  rule.     It  is  nevertheless  within  this  principle. 
It  was  provided  that  any  town  or  city  might  appropriate  money 
for  suitable  buildings  or  rooms,  and  for  the  foundation  of  a 
library  a  sum  not  exceeding  one  dollar  for  each  of  the  ratable 
poUs  in  the  year  next  preceding,  and,  annually  thereafter,  a 
sum  not  exceeding  fifty  cents  for  each  of  its  ratable  polls.     It 
was  held  that  the  power  to  make  the  subsequent  appropria- 
tions, with  its  limitation,  was  for  the  same  object  as  the  first, 
and  did  not  apply  to  the  power  to  appropriate  for  buildings 
or  rooms.^    An  act  provided  for  the  adoption  of  a  statute  by 
cities  and  towns  "  at  a  legal  meeting  of  the  city  council,  or  the 
inhabitants  of  the  town  called  for  that  purpose."     It  was  held 
that  "  called  for  that  purpose  "  did  not  apply  to  a  city  council.'^ 
This  principle  is  of  no  great  force ;  it  is  only  operative  when 
there  is  nothing  in  the  statute  indicating  that  the  relative  word 
or  qualifying  provision  is  intended  to  have  a  different  effect. 
And  very  slight  indication  of  legislative  purpose  or  a  parity  of 
reason,  or  the  natural  and  common-sense  reading  of  the  stat- 
ute, may  overturn  it  and  give  it  a  more  comprehensive  appli- 
cation.^   Thus,  as  was  said  by  the  court  in  Great  Western 
Kailway  Company  v.  Swindon,^  referring  to  the  phrase  "  horses, 
oxen,  pigs  and  sheei^,  from  whatever  country  they  come^^  the  last 
clause  Avould  apply  alike  to  all  these  animals  and  not  alone  to 
sheep.     In  furtherance  of  the  intention  it  was  held  in  that  case 
that  in  the  construction  of  the  phi^ase  "  messuages,  lands,  ten- 
ements and  hereditaments  of  any  tenure^^  the  last  and  qualify- 
ing words,  "  of  any  tenure,"  applied  to  all  the  preceding  words 

1  Partington,  Ex  parte,  6  Q.  B.  at  3  Dearborn  v.  Brookline,  97   Mass. 

p.  653 ;  Spring  v.  CoUector,  78  IlL  101 ;  466. 

Lehigh  Co.  v.  Meyer,  103  Pa.  St.  479.  4  Quinn  v.  Lowell  Electric  L  Co. 

See  United  States  v.  Babbit,  1  Black,  140  Mass.  106. 

55;  Re  Cambrian  Railway  Scheme,  sGyger's  Estate,  sitpra;  Fisher  v. 

L.  R  3  Ch,  278 ;  §  223.  Connard,  siipra. 

'i  State  V.  Conklin,  84  Wis.  21.  3  L.  R  9  App.  Gas.  at  p.  808. 


INTERPKETATION   AND   CONSTRUCTION.  351 

and  not  merely  to  "  hereditaments."  ^  Qualifying  words  have- 
been  applied  to  several  preceding  sections  where  the  nature  of 
the  provisions  and  the  obvious  sense  required  it.  Thus,  where 
there  was  a  restriction  relating  to  the  compensation  of  certain 
officers,  upon  the  ground  of  reason  and  intention  as  to  all,  and 
the  iraprobabihty  of  a  contrary  design,  it  was  held  not  limited 
in  its  effect  to  the  section  where  it  was  inserted,  but  was  an 
independent  proposition  applying  alike  to  all  officers  of  the 
same  class.^  Where  the  intention  is  manifest,  a  proviso,  or 
qualifying  words  or  clauses  found  in  the  middle  of  a  sentence, 
may  be  placed  at  the  end ;  ^  or,  when  inserted  in  one  section, 
they  may  be  applied  to  the  matter  of  another  section.* 

§  268.  Wbcu  general  words  follow  particular. —  When 
there  are  general  words  following  particular  and  specific 
words,  the  former  must  be  confined  to  things  of  the  same 
Idnd.^  It  was  held  that  a  buU  was  not  included  under  the 
words  "  or  other  cattle "  as  used  in  a  statute  which  made  it 
indictable  for  any  person  to  wantonly  or  cruelly  beat,  abuse 
and  ill-treat  any  horse,  mare,  gelding,  mule,  ass,  ox,  cow, 
heifer,  steer,  sheep  or  other  cattle.^  Bayley,  J.,  said :  "  Ilorse, 
mare,  gelding,  are  one  class ;  ox,  cow,  heifer  and  steer  are  an- 
other, and  in  my  opinion  the  bull  is  not  included  in  this  act.'^ 
Where  an  act  imposed  a  penalty  on  any  person  hauhng  "  any 
timber  or  stone  or  other  thing,  otherwise  than  upon  wheeled 
carriages,"  it  was  held  not  to  extend  to  straw,  but  was  con- 
fined to  things  as  weighty  and  as  liliely  to  cause  injury  to 
roads  as  timber  or  stone.''  It  was  provided  by  the  winding-up 
acts  that  the  court  might  wind  up  a  company  if  a  special  reso- 
lution was  passed,  or  the  business  of  the  company  was  not 
commenced  within  a  year,  or  the  number  of  members  was 

1  See  Eby's  Appeal,  70  Pa.  St  311,  »  Reg.  v.  Edmundson,  28  L.  J.  K  C. 
314;  Coxson  v.  Doland,  3  Daly,  66;  215;  2  E.  &  E.  77;  Gunnestad  v. 
Hart  V.  Kennedy,  15  Abb.  Pr.  290.  Price,  L.  R  10  Ex.  69  (but  see  The 

2  United  States  v.  Babbit,  1  Black,  Alina,  5  Ex.  Div.  227 ;  S.  C.  5  Prob, 
55.  Div.    138;    The   Rowa,  7   id.    247); 

3  Waters  v.  Campbell,  4  Sawyer,  Washer  v.  Elliott,  L.  R.  1  C.  P.  Div. 
121.  174 ;  Foster  v.  Blount,  18  Ala,  687. 

4  State  V.  Turnpike  Co.  16  Ohio  St  t.  HiU,  Ex  parte,  3  C.  &  P.  225. 

308.      See    Matthews    v.    Common-        "  Radnorsliire  Co.  Road  Board  v. 
wealth,  18  Gratt  989 ;  State  v.  For-    Evans,  3  B.  &  S.  400. 
ney,  21  Neb.  223,  226. 


552  INTEKPKETATION   AND   CONSTKUCTION. 

reduced  below  seven,  or  tlie  company  was  unable  to  pay  its 
debts,  or  if  the  court  thougbt  it  just  and  equitable  that  the 
company  should  be  wound  up.  It  was  held  that  the  grounds 
upon  wliich  the  court  might  form  its  conclusion  must  be 
ejusdem  generis  with  those  already  enumerated.^ 

§  269.  Landlords  were  authorized  by  statute  to  distrain  for 
rent  "  all  sorts  of  corn  and  grass,  hops,  roots,  fruits,  pulse,  or 
other  product  whatsoever,  which  shall  be  growing  on  any  part 
of  the  estates  demised."  This  did  not  include  trees,  shi-ubs  and 
plants  growing  in  a  nursery  garden.-  The  memorandum  of  a 
company  stated  that  the  company  was  formed  for  the  purpose? 
among  others,  "  of  carrying  on  the  business  of  mechanical  en- 
gineers and  general  contractors."  A  question  was :  "What  was 
the  scope  of  the  concluding  words,  "general  contractors." 
Lord  Cairns  said :  "  Upon  all  ordinary  principles  of  construc- 
tion, these  words  must  be  referred  to  the  part  of  the  sentence 
which  immediately  precedes  them;  .  .  .  therefore,  .  .  . 
the  term  "  general  contractors  "  would  be  referred  to  that 
which  goes  immediately  before,  and  would  indicate  the  mak- 
ing generally  of  contracts  connected  with  the  business  of  me- 
chanical engineers.  ...  If  these  words  were  not  to  be 
interpreted  as  I  have  suggested,  the  consequence  would  be 
that  they  would  stand  absolutely  without  any  limit  of  any 
kind."  ^  An  act  made  a  railroad  company  liable  for  killing  cer- 
tain enumerated  domestic  animals,  "  et  cetera."  It  also  ex- 
cluded from  being  witnesses  employees  of  the  company  who 
might  be  responsible  to  it  for  negligence  "  by  which  any  stoch 
may  be  injured  or  killed  as  contemplated  by  this  act."  It  was 
held  that  the  act  did  not  apply  to  negro  slaves.* 

§  270.  The  object  of  enumeration  is  to  set  forth  in  detail 
things  which  are  in  themselves  so  distinct  that  they  cannot 
conveniently  be  comprehended  under  one  or  more  general 
terms;  there  is  believed  to  be  no  a  priori  presumption  that 
the  things  enumerated  are  all  of  them  of  the  same  kind. 
When  a  specific  enumeration  concludes  with  a  general  term 

1  Wilb.  on  St.  181 ;  Spackman,  Ex  L.  653.  See  Great  Western  R'y  Co. 
parte,  1  Macn.  &  G.  170 ;  Re  Anglo-  v.  Swindon,  etc.  R'y  Co.  L.  R  9  Ap. 
■Greek  Steam  Co.  L.  R.  2  Eq.  1.  Cas.  787. 

2  Clark  V.  Gaskarth,  8  Taunt.  431.  <  Scaggs  v.   Baltimore,  etc  R   R. 
» Ashbuiy  Co.  v.  Riche,  L.  R.  7  H.    Co.  10  Md.  268. 


INTERPRETATION   AND    CONSTRrCTION.  353 

it  is  held  to  be  limited  to  things  of  the  same  kind.^  it  is  re- 
stricted to  the  same  genus  as  the  things  enumerated.^  It  was 
enacted  that  "  no  tradesman,  artificer,  workman,  laborer,  or 
other  person  whatsoever,  shall  do  or  exercise  any  labor,  busi- 
ness, or  work,  of  their  ordinary  callings  upon  the  Lord's  day." 
This  has  been  held  not  to  include  a  farmer,^  or  drivers  of  stage- 
coaches,* or  attorneys.^  On  the  same  principle  "  parochial  re- 
lief or  other  alms  "  means  other  parochial  alms.®  "  Cities, 
towns,  corporate  boroughs  and  places  "  do  not  include  places 
which  are  not  incorporated."  An  act  empowering  justices  to 
determine  differences  between  masters  and  persons  in  several 
employments,  and  "  servants  in  husbandry,  artificers,  handi- 
crafters,"  and  finally  "  all  other  laborers,"  does  not  by  these 
words  extend  to  a  domestic  servant,^  nor  to  a  man  employed 
to  take  care  of  goods  seized  under  a  writ.^  "County,  riding 
or  division"  means  a  division  analogous  to  a  county  or  rid- 
ing.^" 

§  271.  A  Michigan  statute  gave  "every  wife,  child,  parent, 
guardian,  husband  or  other  person''''  a  right  of  action  against  a 
liquor-seller  for  injury  done  to  the  plaintiff  by  reason  of  the 
intoxication  of  any  person.  On  the  ground  and  principle  under 
consideration,  it  was  held  that  the  intoxicated  person  him- 
self was  not  within  the  statute.'^    Another  statute  of  the  same 

1  Countess  of  Rothes  v.  Kirkcaldy  or  writing,  or  by  any  other  false 
Water  Works  Coramissioners,  L.  R  pretense,''  obtain  signatm-es  to  a 
7  App.  Cas.  706.  -written  instrument.     It  was  held  that 

2  Fenwick  v.  Schmalz,  L.  R  3  the  statute  does  not  enumerate  the 
C.  P.  315.  false  pretense  in  particular  terms,  so 

3  Reg.  V.  Cleworth,  4  B.  &  S.  927.  that  the  term  "  any  other  false  pre- 
<  Sandiman  v.  Breach,  7  B.  &  C.  96.     tense  "  is  not  Hmited  to  a  particular 

5  Peate  v.  Dicken,  1  C.  M.  &  R  422.  kind  of  pretense,  and  the  rule  of  con- 

6  Reg.  V.  Lichfield,  3  Q.  B.  693.  struction  that  general  terms  must  be 
•  Rex  V.  Wallis,  5  T.  R.  375.  construed  as  of  the  same  tenor  as  pre- 
8  Kitchen  v.  Shaw,  6  Ad  &  E.  729.  ceding  particular  terms  previously 
^  Bramwell  v.  Penneck,  7  B.  &  C.  enumerated  has  no  application.     In 

536.  constiniing  a  common  carrier's  con- 
ic Evans  v.  Stevens,  4  T.  R  459.  tract,  contiiining  provisions  to  qualify 
11  Brooks  V.  Cook,  44  Mich.  617.  In  tlie  carrier's  responsibihty,  wliich  ex- 
Higler  v.  People,  44  Mich.  299,  the  empted  the  railroad  company  from 
statute  provided  for  the  pimishment  liability'  for  losses  and  damages  "  in 
of  any  person  who,  "  with  intent  to  loailing,  unloading,  conveyance  and 
defraud  or  cheat  another,  shall  de-  otherwise,"  whether  arising  from 
signedly,  by  color  of  any  false  token  neghgence,  misconduct  or  otherwise. 


354  mTEKPKETATION   AND   CONSTKUCTION. 

state  provides  that  "  every  person  who  shall  set  fire  to  any 
building  mentioned  in  the  preceding  section,  or  to  any  other 
material,  with  intent  to  cause  such  building  to  be  burnt,  or 
shall  by  any  other  means  attempt  to  cause  any  building  to  be 
burnt,  shall  be  punished,"  etc.  This  provision  was  held  to 
contemplate  the  employment  of  some  physical  means  to  con- 
stitute a  punishable  attempt  to  cause  such  building  to  be 
burnt,  and  an  attempt  by  mere  solicitation  is  not  within  the 
statute ;  for  in  construing  statutes  general  terms  are  subordi- 
nated by  preceding  connected  particulars ;  the  rule  is  espe- 
cially applicable  in  the  interpretation  of  statutes  defining 
crimes  and  regulating  their  punishment.' 

§  272.  A  statute  exempted  from  taxation  "every  building 
erected  for  the  use  of  a  college,  incorporated  academy  or  other 
semiiiary  of  learning.''^  As  all  those  enumerated  were  corpo- 
rations, it  was  held  that  the  general  words  "  or  other  semi- 
nary "  required  that  such  institution  should  also  be  incor- 
porated in  order  to  have  the  benefit  of  the  exemption.^  A 
railroad  company  was  authorized  by  its  charter  "  to  pur- 
chase, hold  and  use  all  such  real  estate  and  other  property 
as  may  be  necessary  for  the  construction  of  its  railway  and 
stations,  and  other  accommodations  as  may  be  necessary  to 
accomplish  the  objects  of  its  incorporation."  The  term  "  other 
accommodations "  was  held  not  to  include  an  elevator,  cost- 
ing two  or  three  hundred  thousand  dollars,  for  storing  and 
handling  grain. ^  The  court  say:  "It  has  no  direct  connec- 
tion with  the  road  or  its  operation ;  yet  when  shipments  of 
grain  are  made  either  to  or  from  it  over  the  company's 
road,  it  is  very  clear  the  company  can  handle  the  grain  thus 
shipped  with  more  ease  and  greater  facility,  and  hence  can  by 

the  court  held  that  general  words  of  v.  Moore,  5  Midi.  368 ;  Hawkins  v. 
exemption,  when  used  after  a  desig-  Great  W.  R.  R.  Co.  17  Mich.  57 ;  Mat- 
nation  of  specific  exemptions  and  terof  Ticknor'sEst.  13Mich.44;  PhQ- 
risks,  will  be  presumed  to  include  lips  v.  Poland,  L.  R  1.  C.  P.  204 ;  Hall 
only  those  of  a  simUar  character,  un-  v.  State,  20  Ohio,  7 ;  Daggett  v.  State, 
less  a  different  intention  is  manifest.  4  Conn.  60 ;  Chegaray  v.  Mayor,  etc. 
Hawkins  v.  Great  W.  R.  R.  Co.  17  13  N.  Y.  220 ;  1  Bish.  Cr.  L.  §  149 ; 
Mich.  57;  American  Transportation  Dwarris,  621. 
Co.  V.  Moore,  5  Mich.  368.  ^  Chegaray  v.  Mayor,  etc.  13  N.  Y. 

» McDade  v.  People,  29  Mich.  50 ;  320. 
citing  American  Transportation  Co.        2 Matter  of  Swigert,  119  HL  83. 


INTERPRETATION    AST)   CONSTRUCTION.  355 

means  of  it  do  a  greater  business."  In  another  part  of  tlie 
opinion  the  court  say  that  "  what  is  included  in  the  expression 
'  other  accommodations '  must  be  of  the  same  class  or  kind  as 
'  railway  and  stations ; ' "  that  it  is  a  well  settled  doctrine  that 
in  construing  statutes,  particularly  those  requiring  a  strict 
construction,  a  general  description  following  a  specific  enumer- 
ation of  objects  or  things  will  be  held  to  include  only  such  as 
are  of  the  same  kind  as  those  specifically  enumerated.  "Any 
works,  mines,  manufactory  or  other  business  where  clerks, 
miners  or  mechanics  are  employed  "  does  not  include  a  hotel, 
for  the  general  words  "  or  other  business  "  refer  to  some  busi- 
ness ejusdern  generis^  as  "  works,  mines,  manufactory."  ^ 

§  273.  The  words  "  other  persons,"  following  in  a  statute 
the  words  "  warehousemen  "  and  "  wharfinger,"  must  be  un- 
derstood to  refer  to  other  persons  ejusdem  generis,  viz.,  those 
who  are  engaged  in  a  like  business,  or  who  conduct  the  busi- 
ness of  warehousemen  or  wharfingers  with  some  other  pursuit, 
such  as  shipping,  grinding  or  manufacturing.^  An  act  en- 
abling the  owner  of  realty  to  sustain  an  action  of  replevin  to 
recover  timber,  lumber,  coal  or  other  property  severed  from 
the  realty,  notwithstanding  the  fact  that  the  title  to  the  land 
may  be  in  dispute,  does  not  apply  to  growing  crops.  The 
words  "  other  property  "  in  that  act  were  held  to  be  intended 
to  include  only  articles  of  the  same  generic  character  as  those 
enumerated  —  such  as  slate,  marble,  iron  ore,  zinc  ore,  and  all 
other  forms  of  minerals  and  ores,  building  stone,  and  fixtures 
and  machinery  of  every  description,  which  have  been  perma- 
nently affixed  to  the  realty.^  Provision  by  statute  was  made 
for  compensation  to  owners  abutting  on  streets  for  damage 
caused  by  a  "  change  of  the  grade  or  lines  "  thereof,  or  in  case 
the  authorities  "  in  any  way  alter  or  enlarge  the  same."  The 
court,  in  a  case  for  damages  for  widening  an  alley,  say  of  the 
act :  "  It  speaks  of  a  change  of  the  '  grade  or  Unes '  of  any 
street ;  and,  while  the  succeeding  words,  '  or  in  any  way  alter 
or  enlarge  the  same,'  might  seem  to  apply  to  widening  a  street, 
yet,  looking  at  the  manifest  object  of  the  act  [which  was  to 
compensate  the  owner  whose  property  is  not  taken,  but  is  in- 

1  Sullivan's  Appeal,  77  Pa.  St  107 ;  2  Bucher  v.  Commonwealth,  103  Pa. 
Allen's  Appeal,  81*  Pa.  St  302.  St  528. 

3  Renick  v.  Boyd,  99  Pa.  St  555. 


356  INTERPEETATION   AND   CONSTKUCTION. 

jured  by  change  of  grade],  we  must  read  these  general  words 
in  connection  with  such  object.  Tested  by  this  familiar  rule, 
it  is  manifest  the  general  words  referred  to  are  c^ualiiied  by 
the  preceding  special  words,  and  that  the  act  has  no  applica- 
tion where  there  is  no  change  of  grade."  '  A  statute  provided 
that  "  any  married  woman  whose  husband,  either  from  drunk- 
enness, profligacy  or  any  other  cause,  shall  neglect  or  refuse 
to  provide  for  her  support,  .  .  .  shall  have  the  right  in 
her  own  name  to  transact  business."  It  Avas  held  that  the 
words  "any  other  cause"  must  be  understood  to  be  cause 
ejusdem  generis^  and  that  they  do  not  include  mere  mental  or 
physical  incapacity.-  So  the  power  given  to  a  board  of  super- 
visors to  remove  an  inspector  of  the  house  of  correction  for 
certain  specified  causes,  "  or  other  cause  satisfactory  to  the 
board,"  was  held  to  include,  by  the  effect  of  the  last  or  general 
clause,  only  other  like  causes  —  that  is,  causes  affecting  the 
officer's  fitness  for  the  ofiice.^ 

§  274.  A  power  to  correct  "  manifest  clerical  or  other  errors 
in  any  assessments  or  returns  "  was  intended  simply  to  permit 
a  correction  of  manifest  and  clerical  errors ;  those  apparent 
on  the  face  of  the  assessments  or  returns ;  those  of  form  and 
not  of  substance.*  The  statutes  of  IS'ew  York  relating  to 
offenses  of  the  nature  of  burglary  enact  that  the  term  "  build- 
ing" includes  "a  railway  car,  vessel,  booth,  tent,  shop,  or 
other  erection  or  inclosiore^  "  and  the  general  words  were  con- 
strued as  limited  to  the  same  class  of  erections  or  inclosures 
already  specified,  and  did  not  include  a  vault  intended  and  used 
exclusively  for  the  interment  of  the  dead.^  An  action  was 
brought  to  recover  certain  real  property  under  a  legislative 
act  Avhich  authorized  the  people  to  bring  an  action  to  recover 
"  money,  funds,  credits  and  property  "  held  by  public  corporar 
tions,  and  Avrongf ully  converted  or  disposed  of ;  and  it  was 
held  that  the  word  "  property,"  although  in  its  widest  mean- 
ing inclusive  of  all  things  that  might  be  owned,  yet,  when 
taken  in  connection  wi'.-i  other  words  used  in  the  statute,  and 
in  view  of  the  surrounding  cii'cumstances  under  which  the  act 

1  Re  Brady  Street,  99  Pa.  St.  591.  <  Matter  of  Hermance,  71  N.  Y.  481. 

2  Edson  T.  Hayden,  20  Wis.  682 ;  5  People  v.  Richards,  108  N.  Y.  137 ; 
King  V.  Thompson,  87  Pa,  St.  365.  S.  C.  11  Cent  Rep.  75. 

3  State  V.  McGarry,  21  Wis.  496. 


INTERPRETATION   AND   CONSTRUCTION.  357 

was  passed,  was  not  to  be  given  its  usual  and  enlarged  mean- 
ing, but  was  limited  to  include  only  property  of  the  same 
general  character  as  that  already  mentioned  in  the  statute, 
which  was  personal  property.^ 

§  275.  A  late  English  case  involved  the  construction  of  an 
insurance  policy.  A  steamer  was  insured  by  a  policy  on  the 
s'.iip  and  her  machinery,  including  the  donkey-engine.  The 
policy  covered  perils  of  the  sea,  specially  naming  many,  and 
then  continued :  "  and  of  all  other  perils,  losses  and  misfortunes 
that  have  or  shall  come  to  the  hurt,  detriment  or  damage  of 
the  aforesaid  subject-matter  of  this  insurance  or  any  part 
thereof."  For  the  j)urposes  of  navigation  the  donkey-engine 
was  being  used  in  pumping  water  into  the  main  boilers,  when, 
owing  to  a  valve  being  closed  which  ought  to  have  been  kept 
open,  water  was  forced  into  and  split  open  the  air  chamber  of 
the  donkey-pump.  The  closing  of  the  valve  was  either  ac- 
cidental or  due  to  the  negligence  of  an  engineer,  and  was  not 
due  to  ordinary  wear  and  tear.  It  was  held  that  the  injury 
was  not  covered  by  the  policy,  as  it  was  not  a  peril  of  the  sea ; 
and  although  it  was  undoubtedly  "  a  loss  or  misfortune,"  yet 
the  specific  words  of  the  pohcy  which  preceded  its  general 
language,  it  was  said,  restricted  it  to  the  same  genus  as  the 
specific  words.'-  In  the  course  of  his  judgment  the  chancellor, 
Halsbur}^,  said :  "  If  understood  in  their  widest  sense  the  words 
are  wide  enough  to  include  it  [the  injury] ;  but  two  rules  of 
construction,  now  fairly  established  as  a  part  of  our  law,  may 
be  considered  as  limiting  these  words.  One  is  that  words,  how- 
evcK  general,  may  be  Hmited  with  respect  to  the  subject-matter 
in  relation  to  which  they  are  used.  The  other  is  that  gen- 
eral words  may  be  restricted  to  the  same  genus  as  the  specific 
words  that  precede  them."  Power  was  delegated  to  a  city  by 
its  charter  to  license  "  auctioneers,  grocers,  merchants,  retailers, 
hotels,  .  .  .  hackney  carriages,  omnibuses,  carts,  drays, 
and  other  vehicles,  and  all  other  business,  trades,  avocations 
and  professions  whatever."  The  profession  of  law  Avas  not 
specially  enumerated  in  the  section,  and  it  was  held  not  in- 
cluded in  the  grant  of  the  power  to  tax,  because  it  was  not  ejus- 

1  People  V.  N.  Y.  etc.  R  R,  Co.  84  2  Thames,  etc.  Ins.  Co.  v.  Hamilton, 
N.  Y  505.  L.  R  12  App.  Cas.  484. 


358  INTEKPKETATION   AND   CONSTKUCTIO::, 

dem  generis}  An  employer  was  made  subject  to  a  penalty  if 
he  sliould  deduct  directly  or  indirectly  from  the  wages  of  any 
artificer  in  his  employ  any  part  of  such  wages  for  frame  rent 
and  standing  or  other  charges.  Where  the  employer  was  a 
hosier  manufacturer,  and  an  employee  a  hand-frame  worker, 
and  according  to  the  regulations  of  the  factory  the  latter  was 
liable  to  a  fine  of  8iZ.  a  day  for  staying  away  from  work  with- 
out permission,  and  had  been  fined  for  that  cause,  and  the 
amount  deducted  from  his  wages,  it  was  held  not  within  the 
statute ;  "  other  charges,"  following  immediately  after  frame- 
rent  and  standing,  were  taken  to  mean  other  charges  ejusdern 
generis?  It  was  enacted  that  the  business  of  a  blood-boiler, 
bone-boiler,  fell-monger,  slaughterer  of  cattle,  horses,  or  animals 
of  any  description,  soap-boiler,  tallow-melter,  tripe-boiler,  or 
other  noxious  or  offensive  husiness,  trade,  or  manufacture,  shall 
not  be  newly  established  in  any  building  or  place,  etc. ;  and  on 
the  question  whether  a  brick-maker  was  within  the  regulation, 
Erie,  C.  J.,  thus  stated  and  answered  it :  "  Is  brick-making  of 
necessity  a  business  of  a  noxious  or  offensive  nature  analogous 
to  those  specified  at  the  beginning  of  the  clause?  I  am  of 
opinion  that  it  is  not."  *  A  statute  required  a  voting  paper  to 
contain  the  name  of  the  street,  lane,  or  other  jplace,  in  which 
the  property  for  which  the  voter  appears  to  be  rated  on  the 
burgess  roll  is  situated.  In  Eegina  v.  Spratley,^  Lord  Camp- 
bell, C.  J.,  said :  "  Though  I  think  that  the  '  other  place '  must 
be  ejusdem  generis  with  '  street '  and  '  lane,'  I  think  that  parish 
may,  in  some  cases,  be  ejusdem  generis  with  street  or  lane." 

§276.  The  words  "estate"  or  "effects,"  and  the  like,  if 
used  in  a  clause  containing  an  enumeration  of  personal  estate, 
will  generally  be  confined  to  estate  or  effects  ejusdem  generis 
with  those  specified,  as  being  the  most  natural,  when  unex- 
plained by  the  context.^  A  person  employed  by  a  building- 
owner  to  erect  a  building  adjoining  the  house  of  another  is 

1  St  Louis  V.  Laughlin,  49  Mo.  559 ;  3  Wanstead  Board  v.  HiU,  13  C.  B. 

Grumley     v.    Webb,    44    Mo.    444 ;  (N.  S.)  479. 

Stone  V.  Stone,  1  R.  I.  425 ;  White  v.  <  6  E.  &  B.  at  p.  367. 

Ivey,  34  Gal86;  State  v.  Stoller,  38  sMcIntyre  v.  Ingraham,   35  Miss. 

Iowa,  321.  25 ;  Rawlings  v.  Jennings,  13  Ves.  46 ; 

2WiUis  V.  Thorp,   L,   R.  10  Q.   B.  Stuart  t.  Earl  of  Bute,  3    id.  212; 

S83.  Hotham  v.  Sutton,  15  id.  320. 


INTERPKETATION   AND   CONSTRUCTION.  359 

not  an  "  other  person"  within  the  meaning  of  a  statutory  reg- 
ulation which  requires  a  month's  notice  of  action  to  be  given 
before  a  writ  or  process  is  sued  out  against  "  any  district  sur- 
veyor or  other  jper son  for  anything  done  or  intended  under  the 
provisions  of  the  act."  ^  An  act  for  keejDing  in  repair  a  harbor 
imposed  certain  duties  enumerated  in  a  schedule  annexed  on 
goods  exported  and  imported.  In  the  schedule  under  the  head 
of  "  metals,"  certain  specified  duties  were  imposed  on  "  copper, 
brass,  pewter  and  tin,  and  on  cdl  other  metals  not  eniiraeratedP 
It  was  held  that  the  latter  words  did  not  include  gold  and 
silver.  The  court  in  part  put  the  decision  in  Casher  v.  Holmes,^ 
on  the  ground  that  the  word  "  metals  "  in  popular  language 
does  not  include  gold  and  silver,  but  they  are  spoken  of  as 
pi^ecious  metals.  Littledale,  J.,  said :  "  I  have  no  doubt  that 
those  words  do  not  include  gold  and  silver,  but  refer  to  metals 
ejusdem  generis  with  others  previously  mentioned  under  the 
head  metal ;  and  the  metals  ejusdem  generis^  and  not  already 
enumerated,  can  only  be  compound  metals,  and  what  were 
formerly  called  semi-metals."  It  was  agreed  by  charter- 
party  to  load  a  ship  with  coal  in  regular  and  customary 
turn,  "  except  in  cases  of  riots,  strikes  or  any  other  accidents 
beyond  his  [the  contractor's]  control,"  which  might  prevent 
or  delay  her  loading.  It  was  held  that  a  snow-storm  was  not 
an  accident  within  the  exception.* 

§  277.  There  is  this  further  restriction  of  general  words  fol- 
lowing particular .  words,  that  the  general  words  will  not  in- 
clude any  of  a  class  superior  to  that  to  which  the  partic- 
ular words  belong ;  a  statute  treating  of  deans,  prebands  arid 
others  having  spiritual  promotion  was  held  not  to  extend  to 
hishops^  notwithstanding  the  generality  of  the  latter  words ; 
for,  if  it  had  been  otherwise  intended,  the  superior  persons 
would  have  been  mentioned  in  the  beginning  of  the  sentence, 
and  they  cannot  be  implied.''  Where  the  general  words,  "  all 
other  metals,"  follow  the  particular  words,  '•  copper,  brass,  pew- 
ter and  tin,"  it  was  held  in  the  case  just  referred  to  that  neither 
gold  nor  silver  was  included,  they  being  of  a  superior  kind  to 

1  Williams  v.  Golding,  L.  R  1  C.  P.  3  Fenwick  t.  Schnialz,  L.  R.  3  C.  P. 
69.  313. 

2  2  B.  «S:  Ad.  592.  *  Coplaud  v.   Powell,  1  Bing.  369 ; 

Cliapmau  v.  Woodruff.  34  Ga.  98. 


360  INTERPRETATION   AND   CONSTRUCTION. 

the  particular  metals  enumerated.^     "  Abbots,  priors,  Keepers 
of  hospitals  and  other  religious  houses,"  do  not  include  bishops, 
as  they  are  superior  to  abbots.-  The  statute  of  31  Henry  YIII., 
chapter  3,  discharged  from  payment  of  tithes  all  lands  which 
came  to  the  crown  by  dissolution,  renouncing,  relinquishing, 
forfeiture,  giving  up,  or  by  any  other  means.  It  had  the  effect 
to  discharge  from  tithes  land  which  came  to  the  crown  by 
these  or  by  any  other  inferior  means,  but  did  not  discharge 
therefrom  land  which  came  to  the  crown  by  an  act  of  ])arha- 
ment,  which  is  the  highest  manner  of  conveyance  that  can  be.* 
A  statute  relating  to  indictments  before  justices  of  the  peace 
and  "  others  having  power  to  take  indictments  "  was  not  under- 
stood to  apply  to  the  superior  courts."    The  Enghsh  statute 
which  forbade  salmon  fishing  in  the  waters  of  certain  enumer- 
ated streams,  "  and  all  other  waters  wherein  salmon  are  taken,'^ 
was  considered  as  including  only  rivers  inferior  to  those  men- 
tioned, and  therefore  as  not  comprising  the  Thames  —  Thamasis 
noVile  Uliid  flumen? 

§  278.  But  where  the  result  of  thus  restricting  the  general 
words  would  be  that  they  would  have  no  effect  at  all,  they 
must  be  extended  to  things  superior  in  quality  to  those  enu- 
merated.*' This  naturally  proceeds  from  the  rule  of  construc- 
tion to  give  effect  to  all  the  words  of  a  statute  if  possible,  so 
that  none  will  be  void,  superfluous  or  redundant.'  Thus  the 
statute  of  Marlebridge,  52  Henry  HI.,  chapter  19,  refers  to 
courts  baron  or  other  courts,  and  it  was  held  that  these  words 
extend  to  the  courts  of  record  at  Westminster,  though  the 
act  begins  with  inferior  courts ;  "  for  otherwise  these  general 
words  would  be  void;  for  it  cannot,  according  to  the  general 
rule,  extend  to  inferior  courts,  for  none  be  inferior  or  lower 
than  those  that  be  particularly  named."  ^  For  the  same  reason 
the  restriction  of  general  words  to  things  ejusdem  generis  must 
not  be  carried  to  such  an  excess  as  to  deprive  them  of  aU  mean- 
ing. The  enumeration  of  particular  things  is  sometimes  so  com- 
plete and  exhaustive  as  to  leave  nothing  which  can  be  caUed 

1  Casher  v.  Holmes,  2  B.  &  Ad.  592.        '  2  Inst  478. 

2  2  Inst  457,  478 ;  Archbishop  Can-        6 1  wilb.  on  St  184 
terbury's  Case,  2  Rep.  46a.  '^  See  ante,  §  340. 

3icL  8 Id;  2  Inst  137. 

*Id. 


INTERPRETATION   AXD   CONSTRUCTION.  361 

ejusdem  generis}  If  the  particular  words  exhaust  a  whole 
genus,  the  general  words  must  refer  to  some  larger  genus.'^ 
When  a  statute  of  limitation  enumerated  certain  periods  for 
bi'inging  actions  for  inferior  estates,  and  following  the  enumera- 
tion were  these  words,  "  or  other  action  for  any  lands,  tene- 
ments or  hereditaments,  or  lease  for  a  term  of  years,"  and 
under  the  general  words  it  was  sought  to  bring  an  action  for  a 
higher  estate,  it  was  recognized  that  as  a  general  rule  a  statute 
which  treats  of  things  or  persons  of  an  inferior  degree  cannot 
by  any  general  words  be  extended  to  those  of  a  superior  de- 
gree ;  yet  when  all  those  of  an  inferior  degree  are  embraced  by 
the  express  words  used,  and  there  are  still  general  words,  they 
must  be  applied  to  things  of  a  higher  degree  than  those  enu- 
merated, for  otherwise  there  would  be  nothing  for  the  general 
words  to  operate  on.^  Therefore  these  general  words  were  held 
to  include  a  real  action.* 

§  279.  In  cases  coming  within  the  reach  of  the  principle 
just  illustrated,  general  words  are  read  not  according  to  theu' 
natural  and  usual  sense,  but  are  restricted  to  persons  and 
things  of  the  same  kind  or  genus  as  those  just  enumerated ; 
they  are  construed  according  to  the  more  explicit  context. 
This  rule  can  be  used  only  as  an  aid  in  ascertaining  the  legis- 
lative intent,  and  not  for  the  purpose  of  controlling  the  inten- 
tion or  of  confining  the  operation  of  a  statute  within  narrower 
limits  than  was  intended  by  the  law-maker.  It  affords  a  mere 
suggestion  to  the  judicial  mind  that  where  it  clearly  appears 
that  the  law-maker  was  thinking  of  a  particular  class  of  per- 
sons or  objects,  his  words  of  more  general  description  may 
not  have  been  intended  to  embrace  any  other  than  those  within 
the  class.  The  suggestion  is  one  of  common  sense.  Other 
rules  of  construction  are  equally  potent,  especially  the  primary 
rule  which  suggests  that  the  intent  of  the  legislature  is  to  be 
found  in  the  ordinary  meaning  of  the  Avords  of  the  statute.* 
The  sense  in  which  general  words,  or  any  words,  are  intended 
to  be  used,  furnishes  the  rule  of  interpretation,  and  this  is  to 

1  Id.  185.  ••  Hall  V.  Byrne,  1  Scam.  1 40 ;  Wood- 

2  Feuwick  v,  Sclimalz,  L.  R  3  C.  P.  worth  v.  Paine's  Adm'r,  Breese  (lU.), 
at  p.  316,  374. 

3  Ellis  V.  Mun-ay,  28  Miss.  129 ;  ^  Woodworth  t.  State,  26  Ohio  St 
Dwai-.  on  St  758.  196 ;  Foster  v.  Blount,  18  Ala.  687. 


S62 


mTEKPBETATION   AND   CONSTRUCTION. 


be  collected  from  the  context ;  and  a  narrower  or  more  ex- 
tended meaning  will  be  given,  according  as  the  intention  is 
thus  indicated.!  ^q  jen}^  any  word  or  phrase  its  known  and 
natural  meaning  in  any  instance,  the  court  ought  to  be  quite 
sure  that  they  are  following  the  legislative  intention.^  Hence, 
though  a  general  term  follows  specific  w^jrds,  it  will  not  be  re- 


1  Mclntyi-e  v.  Ingraham,  35  Miss,  at 
p.  52 ;  Michel  v.  IMichel,  5  Madd  72 ; 
Hotham  v.  Sutton,  15  Ves.  320 ;  Stu- 
art V.  Earl  of  Bute,  3  id.  212. 

In  Rex  V.  Shrewsbury,  3  B.  &  Ad. 
216,  the  question  was  whether  a  gas- 
light company  was  liable  to  be  rated 
as  occupiers  of  certain  mains,  pipes 
and  other  apparatus  for  conveying 
gas,  under  a  statute  which  provided : 
"That  the  charges  and  expenses  of 
lighting,  paving,  cleansing,  watering, 
watching,    widening,    altering,    im- 
proving   and    regulating    the    said 
sti'eets,  squares,  liighways,  lanes  and 
other  pubUc  passages  of  the  town  of 
Shrewsbuiy,     .     .     .     shaU    at    all 
times  be  borne  and  defrayed  by  the 
tenants  or  occupiers  of  all  the  houses, 
shops,  malt-houses,  granaries,  ware- 
houses, coach-houses,  yards,  gardens, 
garden     grounds,      stables,    cellars, 
vaults,  wharves  and  other  buildings 
and  hereditaments,"    etc.      Meadow 
and  pastm-e  ground   was  excepted. 
The    company's  mains,    pipes,    etc., 
were  held  ratable.     Lord  Tenterden, 
C.  J.,  remarked  that  the  word  "  her- 
editament "  was  large  enough  to  in- 
clude the  ground  and  soil  in  the  sev- 
eral ways,  lines  and  other  places  in 
which  the  pipes  and  apparatus  be- 
longing to  this  company  are  fixed, 
and  he  said :    "  But  it  is  contended 
that  the  term  as  here  used  was  to  be 
constnied    vdth    reference    to    the 
words  among  which  it  was  found, 
and  must  be  applied  to  hereditaments 
of  the  same  kind  as  those  particu- 
larly   enumerated,    such    as    coach- 
houses, gardens  and  so  on ;  and  reh- 


ance  was  placed  on  a  case  decided 
not  long  ago,  Rex  v.  The  Proprietors 
of  the  Manchester  and  Salf  ord  Water- 
Works,  1  B.  &  C.  630,  Avhere  the 
word  xised  was  'tenement,'  which 
is  also  a  term  of  veiy  large  import  In 
that  case  it  was  held  by  the  coirrt 
that  the  word  shoidd  be  restrained  in 
consti-uction  to  tenements  of  the 
same  kind  as  the  particular  ones  be- 
fore enumerated ;  but  there  is  in  this 
act  a  circumstance  which  was  not 
found  in  the  other  —  the  exception, 
namely,  that  the  act  shall  not  extend 
to  meadows  and  pastures.  Now  it  is 
cei-tain  that  meadows  and  pastures 
would  have  fallen  within  the  mean- 
ing of  the  word  'hereditament'  if 
they  had  not  been  excepted ;  it  was 
argued,  therefore,  that  tliis  special 
exemption  of  meadows  and  pastures 
showed  that  the  other  word  had  been 
previously  used  in  a  larger  sense. 
On  the  other  hand  it  was  contended 
that  these  words  had  been  intro- 
duced merely  ex  majori  cautela.  Upon 
the  best  consideration  we  have  been 
able  to  give  tliis  case,  we  are  of  opin- 
ion that  we  ought  not  to  consider 
the  exception  of  meadow  and  pasture 
groimd  as  made  only  for  greater 
caution,  but  are  boimd  to  look  upon 
it  as  introduced  by  way  of  special 
exception,  and  so  to  construe  the 
clause;  and,  consequently,  every- 
thing not  so  specifically  excepted 
must  be  understood  to  fall  witliin 
the  general  liability." 

-  Lord  Denman,  C.  J.,  in  Tisdell  v. 
Combs,  7  Ad.  &  E.  at  p.  796. 


INTERPRETATION    AND   CONSTRUCTION.  363 

strictcd  by  them  when  the  object  of  the  act  and  the  intention 
is  that  the  general  word  shall  be  understood  in  its  ordinary 
sense.  An  instance  is  furnished  by  an  act  in  South  Carolina 
which  subjected  to  punishment  any  person  convicted  of  know- 
ingly and  wilfully  packing  or  putting  into  any  bag,  bale  or 
bales  of  cotton,  any  stone,  wood,  trash  cotton,  cotton  seed  or 
any  matter  or  thing  whatsoever,  ...  to  the  purpose  or 
intent  of  cheating  or  defrauding  any  person,  etc.  The  court 
held  that  the  expression  "  any  matter  or  thing  whatsoever  " 
was  not  restricted  by  the  things  enumerated.  In  this  case  the 
weight  was  fraudulently  increased  by  use  of  water.  "  Here," 
say  the  court,  "  there  is  no  incongruity  between  the  specifica- 
tions and  the  general  expression,  and  it  cannot  be  doubted 
that  it  was  the  intention  of  the  legislature  to  punish  frauds  in 
packing  cotton  without  regard  to  the  character  of  the  material 
used."  ^ 

§  280.  An  act  prescribed  the  fees  of  county  judges  and 
clerks  of  county  courts,  and  made  it  an  offense  for  either  to 
receive  any  other  or  greater  fees  from  any  guardian,  executor 
or  administrator  or  other  person.  In  a  prosecution  against  the 
clerk  for  excessive  fees  in  a  suit,  and  in  answer  to  the  conten- 
tion that  "  other  person  "  is  only  some  one  who  has  paid  more 
or  greater  fees  than  are  allowed  by  law  in  some  matter  relating 
to  the  administration  of  estates,  the  court,  while  recognizing 
the  rule  for  limiting  general  words  to  persons  and  things  ejus- 
dem  generis,  said :  "  This  is  but  a  rule  of  construction  by  which 
courts  are  to  ascertain  the  intention  of  the  legislature,  and 
when  that  is  apparent  we  are  bound  by  it,  and  can  no  more 
disregard  the  intention  in  the  exposition  of  a  penal  statute 
than  any  other."  ^  The  court  held  that  the  true  meaning  of 
the  act  was  to  punish,  as  an  offense,  the  taker  of  greater  than 
the  prescribed  fees  from  any  person.  A  statute  enacted  that 
"  no  house,  office,  room  or  other  place  shall  be  opened,  kept  or 
used  "  for  the  purpose  of  prohibited  betting.  A  question  came 
before  the  common  bencli  whether  betting  under  a  clump  of 
trees  in  Hyde  Park  was  Avithin  the  statute.^    It  was  held  to 

1  State  V.  Holman,  3  McCord,  306 ;  2  Foster  t.  Blount,  18  Ala.  687. 

Riindolph  V.  State,  9  Tex.  521 ;  State  3  Doggett  v.  Catteins,  17  C.  B.  (N.  S.) 

V.  Williams,  3  Sti'ob.  474;   State  v.  669. 
Solomon,  38  Ind.  450. 


364  INTERPRETATION   AND   CONSTRUCTION. 

be  SO.  Erie,  C.  J.,  said :  "  The  mischief  is  to  my  mind  precisely 
the  same  whether  the  party  stands  under  the  shelter  of  an 
oak  tree,  or  of  a  roof  or  a  covering  of  canvass ;  and  I  think  the 
words  are  large  enough  to  embrace  it.  .  .  .  Beyond  aU 
doubt  the  mischief  which  the  statute  intended  to  remedy  was 
that  which  was  known  to  exist,  viz. :  the  injury  resulting  to 
improvident  persons  by  the  opening  of  betting-houses  or  offices ; 
but  I  think  it  was  intended  to  go  further  and  to  prohibit  the 
trade  of  betting  wheresoever  it  might  be  carried  on.  If  the 
prohibition  had  stopped  at  '  houses,  offices  and  rooms,'  certain 
persons,  minded  to  carry  on  this  traffic,  would  resort  to  tree^ 
in  the  park,  and  the  legislature  ma}"  well  have  thought  that  a 
practice  which  should  be  placed  under  control,  and  for  that  pur- 
pose inserted  the  general  words."  The  exchequer  chamber  re- 
versed this  decision  on  the  ground  that  the  "  place  "  should  be 
one  capable  of  having  an  owner.  That  court  concurred  in  the 
view  taken  by  the  common  pleas  so  far  that  the  place  being 
an  open  one,  and  not  a  "  house,"  "  office  "  or  "  room,"  would 
not  alone  prevent  it  being  a  "  place  "  within  the  statute.^  It 
was  held  that  a  bicycle  is  not  a  "  carriage  "  within  the  mean- 
ing of  a  turnpike  act  which  scheduled  animals  and  vehicles  and 
defined  tolls  to  be  paid,  and  contained  this  paragraph :  "  For 
every  carriage  of  whatever  description  and  for  whatever  pur- 
pose which  shall  be  drawn  or  impelled,  or  set  or  kept  in  mo- 
tion, by  steam  or  any  other  power  or  agency  than  being  drawn 
by  any  horse  or  horses  or  other  beast  or  beasts  of  draught, 
any  sum  not  exceeding  5^."  ^  A  city  charter  granted  authority 
to  impose  a  license  tax  upon  persons  engaged  in  certain  enu- 
merated callings,  and  "  upon  any  other  person  or  employment 
which  it  may  deem  proper,  whether  such  person  or  employ- 
ment be  herein  specially  enumerated  or  not."  And  it  was 
held  not  to  empower  the  city  to  impose  such  tax  upon  a  rail- 
road corporation,  for  it  is  neither  a  person  nor  an  employ- 
ment within  the  ordinary  acceptation  of  those  words.     This 

1 19  C.  B.  (N.  S.)  765 ;  Haigh  v.  Cor-  275 ;  Shaw  v.  Morley,  L.  E.  3  Ex.  137 ; 

poration  of  Slieffield,  L.  R.  10  Q.  B.  102.  Bows  v.  Fenwick,  L.  R.  9  C.  P.  339 ; 

See  Clark  v.  Hague,  2  E.  &  E.  281 ;  Shillito  v.  Thompson,  L.  R  1  Q.  B. 

Morley  v.  Greenhalgh,  3  B.  &  S.  374 ;  Div.  12. 

Eastwood  V.  Miller,  L.  R.  9  Q.  B.  440 ;  2  Williams  v.  Ellis,   L.  R  5  Q.  R 

Gallaway  v.  Maries,  L.  R  8  Q.  B.  Div.  Div.  17.1 


INTEKPRETATION   AND   COXSTEUCTION.  365 

conclusion  was  aided  by  the  consideration  that  snch  corpora- 
tions are  not  ejusdem  generis  "with  the  persons  and  employ- 
ments specially  enumerated.  The  court  say,  whilst  the  obvious 
Import  of  the  general  words  "  is  to  extend  the  power  of  the 
city  to  tax  other  persons  and  employments  than  the  enumer- 
ated classes,  regardless  of  whether  they  are  taxed  by  the  state 
or  not,  it  cannot  be  said  to  necessarily  convey  the  idea  that 
these  new  taxable  subjects  shall  be  different  in  character  or 
higher  in  degree."  ^  It  was  also  held  when  a  particular  class 
of  persons  or  things  is  spoken  of  in  a  statute,  and  general 
words  follow,  the  class  first  mentioned  must  be  taken  to  be  the 
most  comprehensive  and  the  general  words  treated  as  referring 
to  matters  ejusdem,  generis  with  that  class ;  the  effect  of  gen- 
eral words  when  they  follow  particular  words  being  then  re- 
stricted.- 

§  281.  Where  an  act  made  it  penal  to  convey  to  a  prisoner, 
in  order  to  facilitate  his  escape,  "  any  mask,  dress  or  disguise, 
or  any  letter,  or  any  other  article  or  thing,"  the  general  words 
were  construed  withoiit  restriction  on  account  of  the  preced- 
ing enumeration,  and  included  a  bar.*  A  statute  enacted  that 
it  should  be  lawful  for  any  two  justices  upon  complaint  made 
upon  oath  that  there  was  cause  to  suspect  that  purloined  or 
embezzled  materials,  used  in  certain  manufactures,  were  con- 
cealed "  in  any  dwelhng-house,  out-house,  yard,  garden,  or 
other  place  or  places,^'*  to  issue  a  search-warrant  for  the  search 
there,  with  authority  to  deal  ^vith  the  person  in  whose  house, 
etc.,  they  were  found.  It  was  held*  that  a  warehouse,  occu- 
pied for  business  purposes  only,  and  not  within  the  curtilage 
of,  or  connected  with,  any  dwelling-house,  was  "a  place" 
within  the  meaning  of  the  statute.  Erie,  J.,  said  the  only 
point  here  is  whether  a  warehouse  is  one  of  those  "  other 

1  Lynchbiirg  v.  N.  &  W.  R  R  Co.  profession,  trade  or  calling  or  busi- 

80  Va.  237.  Where,  by  statutory  defi-  ness  of  any  nature  whatever,"  will 

nition,  the  word  "  person "  includes  authorize  the  city  to  tax  chartered 

corporation,  when  applicable  accord-  banks  therein  to  the  extent  that  pri- 

ing  to  nature  of  the  subject,  a  general  vate  bankers  are  taxed.     Macon  v. 

power  to  levy  tax  upon  "  factors,  brok-  Macon  Savings  Bank,  60  Ga.  133. 

ers  and  vendors  of  lottery  tickets,  and  -  Lynchburg  v.  N.  &  W.  R  R  Co. 

upon  agents  and  managers  of  gift  .vipra. 

enterprises,  and  upon  all  other  per-  ^  Reg.  v.  PaATio,  L.  R  1  C.  C.  27. 

sons  exercising,  within  the  city,  any  *  Reg.  v  Edmundson,  2  EL  &  EL  77, 


306  INTEEPEETATION    AND    CONSTEUCTION. 

places."  In  deciding  that,  we  must  construe  the  statute  with 
reference  to  the  object  of  the  legislature  in  passing  it."  The 
statute  15  and  16  Yict.,  ch.  81,  §  2,  empowered  the  justices  of 
the  county  to  appoint  a  committee  of  their  body  for  the  pur- 
pose of  preparing  a  basis  or  standard  for  fair  and  equal  county 
rates,  to  be  founded  on  the  full  and  fair  annual  value  (inter- 
preted by  section  6  to  mean  the  net  annual  value)  of  the  prop- 
erty ratable  to  the  poor  rate,  in  every  parish  in  the  county. 
Section  5  empowered  the  committee  to  order  in  writing  cer- 
tain specified  parish  ofiicers  and  other  persons,  having  the 
custody  or  management  of  any  public  or  parochial  rates  or 
valuations  of  the  parishes,  to  make  written  returns  to  the 
committee  of  the  amount  of  the  full  and  fair  annual  value  of 
the  property  in  any  parish  liable  to  be  assessed  toward  the 
county  rate ;  the  date  of  the  last  valuation  for  the  assessment 
of  such  parish ;  and  the  name  of  the  surveyor  or  other  person 
by  whom  such  valuation  was  made.  By  section  7  the  com- 
mittee may,  by  their  order  in  writing,  require  the  "  overseers 
of  the  poor,  constables,  the  assessors,  collectors,  and  any  other 
persons  who7nsoever,  to  appear  before  them,"  "  and  to  pro- 
duce aU  parochial  and  other  rates,  assessments,  valuations, 
apportionments,  and  other  documents  in  their  custody  or 
power  relating  to  the  value  of,  or  assessments  on,  all  or  any 
of  the  property  within  the  several  parishes,  or  which  may  be 
liable  to  be  assessed  toward  the  county  rate ;  and  to  be  exam- 
ined under  oath  "  "  touching  the  said  rates,  assessments,  valua- 
tions, or  apportionments,  or  the  value  of  property  aforesaid." 
By  another  section  neglect  or  refusal  to  comply  subjected  the 
delinquent  to  a  penalty.  It  was  held  in  Regina  v.  Doubleday,^ 
that  section  7  authorized  the  committee  to  call  before  them  all 
persons  whomsoever  able  to  give  evidence  of,  and  produce  any 
documents  relating  to,  the  subjects  mentioned,  and  did  not 
restrict  the  committee  to  ascertaining  by  the  examination  of 
the  persons,  and  the  inspection  of  the  documents  specified  in 
section  5,  the  amount  at  which  the  property  is  rated  to  the 
poor  rate ;  that,  therefore,  a  person  having  in  his  possession 
private  accounts  and  documents  relating  to  the  annual  value 
of  colUeries  and  coal  mines  assessable  to  the  county  rates  and 

1 3  EL  &  EL  50L 


mXERPEETATION    AND   CONSTKUOTION. 


367 


able  to  give  evidence  touching  their  net  annual  value  incurred 
the  penalty  by  refusing  to  obey  the  order  of  the  committee. 
The  general  words  were  construed  according  to  their  ordi- 
nary meaning,  unrestricted  by  the  particular  words  which 
preceded  them,  because  the  purpose  of  the  act  obviously  re- 
quired it.  So  an  act  relating  to  nuisances,  under  which  an 
inspector  had  a  visitorial  power,  provided  a  penalty  for  pre- 
venting him  "  from  entering  any  slaughter-house,  shop,  build- 
ing, market  or  other  place  "  where  the  things  to  be  inspected 
were  kept.  It  was  held  that  a  yard  was  "  a  place  "  within  the 
meaning  of  the  act.  The  court,  in  Young  v.  Grattridge,^  ex- 
pressed the  opinion  that  it  was  not  confined  to  places  ejusdem 
generis  with  those  mentioned,  where  animals,  or  carcasses,  etc., 
to  which  the  provisions  of  the  act  related,  might  be  kept  for 
sale  or  preparation  for  sale  as  food  for  man ;  "  and  I  think," 
said  Lush,  J.,  "  that  there  is  nothing  quahfying  the  generality 
of  the  term  '  place,'  and  that  a  yard  is  within  the  term." 

§  282.  Reddendo  singula  singulis.—  General  words  in  a 
legislative  act  are  often,  where  the  sense  requires  it,  and  in 
furtherance  of  the  intention,  to  be  taken  distributively,  red- 
dendo singula  singulis.  They  are  thus  applied  to  the  subject- 
matter  to  which  they  appear  by  the  context  most  properly  to 
relate,  and  to  which  they  are  really  most  applicable.  Thus, 
the  words  "  according  to  the  provisions  of  said  act,  and  of 
this  act,"  obviously  import  that  the  requisitions  of  the  two  acts 
(that  act  itself,  and  another  thereinbefore  mentioned),  in  their 
respective  particulars,  are  to  be  duly  complied  with ;  as  if  the 
one  under  its  circumstances  requires  signature  to  an  instru- 
ment only,  and  the  other  that  it  be  under  hand  and  seal.^  In 
the  construction  of  the  words,  "  for  money  or  other  good  con- 
sideration paid  or  given,"  "  paid  "  is  referred  to  "  money  "  and 
"given"  to  "consideration."  3  This  method  of  limiting  the 
effect  of  expressions  which  are  obviously  too  wide  to  be  con- 
strued literally  is  most  frequently  adopted  when  the  opening 
words  of  a  section  are  general,  while  the  succeeding  parts 
branch  out  into  particular  instances.''    Where  several  words 

1 L.  R.  4  Q.  B.  166.  '  Dwarris  on  St  613. 

2  Dwarris  on  St  613 ;  Rex  v.  Inhab-        *  Wilb.  on  St  189. 
itantB  of  Stoke  Damerel,  7  B.  &  C.  570. 


368  INTERPRETATION   AND   CONSTRUCTION. 

importing  power,  authority  and  obligation  are  found  at  the 
commencement  of  a  clause  containing  several  branches,  it  is 
not  necessary  that  each  of  those  words  should  be  applied  to 
each  of  the  different  branches  of  the  clause ;  it  may  be  con- 
strued reddendo  singula  singidis;  the  words  giving  power  and 
authority  may  be  applicable  to  some  branches,  those  of  obli- 
gation to  others.^  Where  the  words  were,  "  the  finding  of  a 
cow  by  and  on  the  land,"  the  court  said  by  Patterson,  J. :  "I 
think  we  must  say,  '  reddendo  singida  singidis,''  that  the  find- 
ins:  was  to  be  '  on '  the  land  while  there  Avas  food  on  it,  and 
by  the  owner  of  the  land  with  hay,  at  other  thnes."  ^  "Words 
in  different  parts  of  a  statute  must  be  referred  to  their  proper 
connections,  giving  each  in  its  place  its  proper  force.' 

§283.  Interpretation  affected  Iby  other  statntes. —  All 
consistent  statutes  which  can  stand  together,  though  enacted 
at  different  dates,  relating  to  the  same  subject,  and  hence 
briefly  called  statutes  in  pari  materia,  are  treated  prospectively 
and  construed  together  as  though  they  constituted  one  act.* 
This  is  true  whether  the  acts  relating  to  the  same  subject  were 
passed  at  different  dates,  separated  by  long  or  short  intervals, 

1  Rex  V.  Bristol  Dock  Co.  6  B.  &  C.  Me.  412 ;  Phelps  v.  Rightor,  9  Rob. 
at  pp.  191,  192.  (La.)  531 ;  Earl  of  Ailsbury  v.  Patti- 

2  Dwarris  on  St.  613 ;  Reg.  v.  Cum-  son,  1  Doug.  28 ;  Gayle's  Heirs  v. 
berworth  Half,  5  Q.  B.  484,  491.  WUliams'  Adm'r,  7  La.  162 ;  Perkins 

3  Mclntyre  v.  Ingraham,  35  Miss.  25.     v.  Perkins,  62  Barb.  531 ;  Mayor,  etc. 
*  United  States  v.  Freeman,  3  How.     v.  Howard,  6  Har.  &  J.  383 ;  State  t. 

556 ;  State  v.  Clark,  54  Mo.  216 ;  Con-  Mooty,  3  HiU  (S.  C),  187 ;  Black  v. 
verse  v.  United  States,  21  How.  463 ;  Tricker,  59  Pa,  St.  13 ;  Green  v.  Com- 
Jacoby  v.  Shafer,  105  Pa.  St  610;  monwealth,  12  AUen,  155;  Van  Riper 
Neeld's  Road,  1  Pa.  St.  353;  People  v.  Esses  P.  R  Bd.  38  N.  J.  L.  23 ;  Dugan 
V.  Weston,  3  Neb.  312;  Manuel  v.  v.  Gittings,  3  Gill,  138;  State  v.  Mis- 
Manuel,  13  Ohio  St.  458,  465 ;  Hendrix  ter,  5  Md.  11 ;  Mobile,  etc.  R.  R  Co. 
V.  Rienian,  6  Neb.  516 ;  State  v.  Bab-  v.  Malone,  46  Ala.  391 ;  Crawford  v. 
cock,  21  Neb.  599 ;  Davidson  v.  Car-  Tyson,  id.  299 ;  Griffith  v.  Carter,  8 
son,  1  Wash.  Ty.  307 ;  United  States  v.  Kan.  565 ;  MitcheU  v.  Duncan,  7 
HaiTis,  1  Sumn.  21 ;  Leroy  v.  Cha-  Fla.  13 ;  Bryan  v.  Dennis,  4  id.  445 ; 
boUa,  2  Abb.  (U.  S.)  448 ;  Scott  v.  Rex  v.  Pahner,  1  Leach,  C.  C.  352 ; 
Searles,  1  Sm.  &  Mar.  590 ;  White  v.  McWilliam  v.  Adams,  1  Macq.  H.  L. 
Johnson,  23  Miss.  68 ;  Hayes  v.  Han-  Cas.  120 ;  Eskridge  v.  McGnider,  45 
son,  12  N.  H.  284 ;  State  v.  Baltimore,  Miss.  294 ;  6  Bac.  Abr.  382,  383 ;  Mt 
etc  R.  R.  Co.  12  Gill  &  J.  399,  431 ;  Holly  Paper  Co."s  Appeal,  99  Pa  St 
McLaughlin  v.  Hoover,  1  Oregon,  31 ;  513 :  Bowles  v.  Cochran,  93  N.  C.  398 ; 
McFarland  v.  Bank  of  the  State,  4  Wliipple  v.  Judge,  etc.  26  Mich.  345 ; 
Ark.   410 ;    Merrill  v.   Grossman,   68  Storm  v.  Cotzhausen,  38  Wis.  139. 


INTERPRETATION    AND    CONSTRUCTION.  3Ul^ 

at  the  same  session  or  on  the  same  day.  They  are  all  to  be 
compared,  harmonized  if  possible,  and,  if  not  susceptible  of  a 
construction  which  will  make  all  their  provisions  harmonize, 
the}^  are  made  to  operate  together  so  far  as  possible  consist- 
ently with  the  evident  intent  of  the  latest  enactments. 

It  is  to  be  observed  that  in  the  comparison  of  different  stat- 
utes passed  at  the  same  session  or  nearly  at  the  same  time  this 
circumstance  has  weight ;  for  it  is  usually  referred  to  as  indi 
eating  the  prevalence  of  the  same  legislative  purpose,  as  render- 
ing it  unlikely  that  any  marked  contrariety  was  intended.  But 
whether  the  prior  statute  is  recent  or  of  long  standing  it  must 
'  yield  if  there  is  a  conflict.  But  with  a  view  to  ascertain  the 
intent  of  the  legislation  on  a  given  subject  at  an}^  time  it  must 
all  be  considered,  whether  it  has  continued  in  force  or  been 
modified  by  successive  changes.' 

§  284.  A  statute  must  be  construed  with  reference  to  the 
whole  system  of  which  it  forms  a,  part.^  And  statutes  upon 
cognate  subjects  may  be  referred  to,  though  not  strictly  m 
pari  materia?  There  being  a  general  statute  regulating  the 
execution  of  wills,  which  did  not  require  subscribing  witnesses, 
a  new  statute  was  passed  providing  for  the  testamentary  dis- 
position of  the  property  of  married  women ;  it  required  that 
such  a  will  should  be  executed  in  the  presence  of  two  wit- 
nesses. The  two  acts  were  construed  together.  A  married 
woman's  will  had  to  be  executed  according  to  the  general  law 
except  in  the  particular  regulated  by  the  later  act  in  respect 
to  witnesses.-*  The  existing  requirements  of  the  law  relative  to 
auditing  accounts  for  state  printing  were  held  not  to  be  re- 
pealed or  such  audit  dispensed  with  by  a  later  act  providing 
for  partial  payments  during  the  progress  of  a  particular  work 
in  terms  which  implied  no  such  prior  audit.'  Though  a  new 
statute  prescribing  the  steps  for  taking  an  appeal  is  general 
and  makes  no  exceptions,  it  will  be  construed  with  any  exist- 
ing law  covering  the  same  subject  and  containing  an  ex- 
ception, for  obvious  reasons,  in  favor  of  parties  who  are  such 

'I«i  'Smith  V.   People,  47  N.  Y.  330; 

2  McDougald  v.  Dougherty,  14  Ga.  ^V^litcomb  v.  Rood,  20  Vt  49. 

674;  Noble  v.  State,  1  Greene  (Iowa),  •»  Linton's  Appeal,  104  Pa.  St.  228. 

325 ;  Hays  v.  Richardson,  1  Gill  &  J,  «  People  v.  Weston,  3  Neb.  313. 
366. 

24 


370  IKTEEPRETATION   AND    CONSTEUCTION. 

in  a  representative  capacity.'  The  general  terms  of  a  later 
statute  will  often  be  restricted  where,  by  prior  laws,  subjects 
naturally  falling  within  such  general  terms  have  been  classi- 
fied and  made  subject  to  distinct  and  dissimilar  regulations. 
The  later  law,  not  showing  any  purpose  to  abolish  this  classi- 
fication, will  be  made  to  operate  on  that  class  alone  to  which 
by  its  terms  it  is  applicable.-  A  statute  authorizing  the  re- 
vival of  actions  by  or  against  the  representative  or  successor 
in  interest  of  the  party  deceased  is  in  jpari  Tnateria  with  other 
statutes  providing  for  the  appointment  of  executors  and  ad- 
ministrators, and  also  those  pointing  out  how  foreign  repre- 
sentatives may  acquire  the  right  to  prosecute  actions.'  A 
statute  relating  to  homestead  and  exemptions  for  a  family  of 
minor  children  was  held  in  pari  7nateria  with  laws  allowing 
dower  to  the  widow  and  minor  children.''  A  statute  in  rela- 
tion to  attachments  against  steamboats  and  other  water  craft 
is  in  pari  materia  with  the  general  attachment  law,  and  they 
should  be  construed  together.' 

§  285.  The  expression  "  any  person  "  in  a  later  statute  will 
be  construed  to  harmonize  with  an  earlier  one  which  required 
for  the  purpose  certain  qualifications.^  "Where  two  acts  had 
required  certain  sums  to  be  paid  into  the  state  treasury  by  a 
city,  and  gave  a  court  jurisdiction  to  enforce  the  payment,  and 
afterwards  another  act  required  an  additional  payment,  thereby 
increasing  the  aggregate,  but  was  silent  as  to  the  mode  of  en- 
forcing it,  it  was  held  that  as  the  later  act  was  merely  sup- 
plemental to  the  others,  the  remedy  given  by  them  should  be 
deemed  applicable  to  the  latter.^  An  offense  defined  in  a  stat- 
ute of  Massachusetts  was  punishable  by  a  fine  not  exceeding 
$1,000,  or  by  imprisonment  in  jail  not  exceeding  one  year.  A 
subsequent  act  conferred  on  the  police  court  jurisdiction  of 
the  offense,  which  was  to  be  concurrent  with  that  of  another 
court,  and  provided  that  when  the  police  court  exercised  final 
jurisdiction  the  punishment  should  be  confined  to  a  fine  not 

1  Koontz  V.  Howsare,  100  Pa,  St.        *  Wallace  v.  Seales,  36  Miss.  53. 
506.  ^  London  Tobacco  Pipe  Makers  v. 

2  People  V.  Molyneux,  40  N.  Y.  118 ;    Woodroffe,  7  B.  &  C.  838. 

Bishop  V.  Barton,  2  Hun,  436.  "  City  of  Louisville    v.  Common- 

3  Hendi-ix  v.  Rieman,  6  Neb.  516.        wealth,  9  Dana,  70,  75. 

4  Roff  V.  Johnson,  40  Ga.  555. 


INTERPRETATION   AND   CONSTRUCTION.  371 

exceediDg  $100,  and  imprisonment  not  exceeding  one  year.  It 
was  held  that  though  the  latter  act,  taken  by  itself,  would 
seem  to  authorize  both  fine  and  imprisonment,  the  language 
being  conjunctive,  yet  when  both  acts  are  construed  together 
it  is  obvious  that  the  latter  authorizes  a  fine  and  also  author- 
izes imprisonment,  but  not  both  in  one  sentence.^ 

§  286.  While  it  is  thus  true  that  statutes  relatine:  to  the 
same  subject  are  to  be  construed  together,  this  rule  does  not 
go  tc  the  extent  of  controlling  the  language  of  subsequent 
statutes  by  any  supposed  policy  of  previous  statutes,  where 
such  language  requires  such  policy  to  be  disregarded.^  Where 
the  last  statute  is  complete  in  itself,  and  intended  to  prescribe 
the  only  rule  to  be  observed,  it  will  not  be  modified  by  the 
displaced  legislation,  as  laws  in  jpari  materia?  Nor  is  an  act 
in  pari  materia  though  it  may  incidentally  refer  to  the  same 
subject,  if  its  scope  and  aim  are  distinct  and  unconnected.* 
Thus  a  statute  in  relation  to  the  confinement  of  stock  to  pre- 
vent its  running  on  the  premises  of  others  was  held  not  in 
pari  materia  with  the  provision  of  the  code  laying  down  the 
rule  of  diligence  to  be  observed  by  railroad  companies  in  run- 
ning their  trains,  and  defining  their  liabilities  in  cases  where 
stock  is  killed.^ 

§  287.  The  legislature  are  presumed  to  know  existing  stat- 
utes, and  the  state  of  the  law,  relating  to  the  subjects  with 
which  they  deal.  Hence,  that  they  would  expressly  abrogate 
any  prior  statutes  which  are  intended  to  be  repealed  b}'-  new 
legislation.  Where  there  is  no  express  repeal  none  is  deemed 
to  be  intended,  unless  there  is  such  an  inconsistency  as  precludes 
this  assumption ;  then  it  yields  only  to  the  extent  of  the  con- 
flict.^ Eegard  must  be  had  to  all  the  parts  of  a  statute,  and 
to  the  other  concurrent  legislation  in  pari  materia;  and  the 
whole  should,  if  possible,  be  made  to  harmonize ;  and  if  the 

1  Commonwealth  v.  Griffin,  105  5  Central  R.  R  Co.  v.  Hamilton, 
Mass.  185.  supra. 

2  Goodrich  v.  RusseU,  42  N.  Y.  177,  6  Ante,  §  138 ;  White  v.  Johnson,  23 
184 ;  State  v.  Cram,  16  Wis.  343,  347.  Miss.  68 ;  State  v.   Commissioner  of 

3  Sutton  V.  Hays,  17  Ark.  462;  R  R  Taxation,  37  N.  J.  L.  228 ;  Wake- 
Williams  V.  Beai-d,  1  Eich.  (N.  S.)  309.  field  v.  Phelps,  37  N.  H.  295 ;  Laughter 

*  Central  R  R  Co.  v.  Hamilton,  71  v.  Seela,  59  Tex.  177 ;  Austin  v.  Gulf, 
Ga.  465 ;  Billingslea  v.  Baldwin,  23  etc.  R  R  Co.  45  Tex.  234 ;  Lewis  v. 
Md.  85.  Aylott,  id  190. 


372  INTEEPKETATION   AND   CONSTRUCTIOHr. 

sense  be  doubtful,  sucb  construction  should  be  given,  if  it 
can  be,  as  will  not  conflict  with  the  general  principles  of  law, 
which  it  may  be  assumed  the  legislature  would  not  intend  to 
disregard  or  change.^  The  statute  of  wills  in  IsTew  York  pro- 
hibited a  devise  to  a  corporation.  A  subsequent  act  incorpo- 
rating an  orphan  asylum  society  gave  it  power  to  purchase 
real  estate.  This  act  was  harmonized  with  the  statute  of  wHls 
by  restricting  the  right  of  purchase  according  to  the  popular 
sense  of  that  word.  Although  technically  a  title  by  devise  is 
by  purchase,  it  was  deemed  more  congenial  to  the  spirit  of 
both  acts  to  give  the  word  purchase  a  restricted  meaning  in 
harmony  with  the  prohibition.^  Provisions  not  repealed  ex- 
pressly or  by  such  implication  continue  to  operate,  but  they 
may  be  modified  by  later  legislation,  which  will  have  the 
effect  expressly  or  by  like  imphcation  of  extending  or  restrict- 
ing theu"  terms  or  scope.^ 

§  288.  Where  enactments  separately  made  are  resid  in  pm-i 
materia,  they  are  treated  as  having  formed  in  the  minds  of  the 
enacting  body  parts  of  a  connected  whole,  though  considered 
by  such  body  at  different  dates,  and  under  distinct  and  varied  as- 
pects of  the  common  subject.  Such  a  principle  is  in  harmony  with 
the  actual  practice  of  legislative  bodies,  and  is  essential  to  give 
unity  to  the  laws,  and  connect  them  in  a  symmetrical  system." 
Such  statutes  are  taken  together  and  construed  as  one  system, 
and  the  object  is  to  carry  into  effect  the  intention.  It  is  to  be 
inferred  that  a  code  of  statutes  relating  to  one  subject  was 
governed  by  one  spirit  and  policy,  and  was  intended  to  be  con- 
sistent and  harmonious  in  its  several  parts  and  provisions.' 

1  Manuel  v.  Manuel,  13  Oliio  St  Tliayer  v.  Dudley,  id.  296 ;  Holbrook 
458,  465.  V.  Holbrook,  1  Pick.  254 ;  Mendon  v. 

2  McCartee  V.  Orphan  Asylum  So-  Worcester,  10  id.  235;  Common- 
ciety,  9  Cow.  437,  506.  See  Dodge  v.  wealth  v.  Martin,  17  Mass.  362 ;  For- 
Gridley,  10  Ohio,  173.  queran  v.   DonnaUy,  7  W.  Va.  114 : 

» Noble  V.  State,  1   Greene  (Iowa),  Hayes  v.  Hanson,  12  N.  H.  284;  Earl 

325.  of  Ailesbury  v.  Patterson,  1  Doug.  28 ; 

*  State  V.  Williams,  13  S.  C.  558.  Harrison  v.  Walker,  1  Ga.  32 ;  Coleman 

5  1  Kent's  Com.  463,  464 ;  State  v.  v.  Davidson  Academy,  Cooke  (Tenn.), 

Baltimore,  etc.  R  R  Co.  12  GiU  &  J.  258 ;  State  v.  BeU,  3  Ired.  L.  506 ;  Henry 

399,  433 ;  Napier   v.  Hodges,  31  Tex.  v.  Tilson,  17  Vt.  479 ;  Fort  v.  Burch, 

287 ;  Wakefield  v   Phelps,  37  N.  H.  6    Barb.    60 ;    Smith    v.    Hickman's 

295 ;  Mayor,  etc.  v.  Howard,  6  Har.  &  Heirs,  Cooke  (Tenn.),  330 ;  Ranoul  ^•. 

J.383;Churchv.Crocker,3Mass.  21;  Grilfie,    3    Md.    54;    McWiUiam    v. 


INTERPKETATION   AND    COKSTKUCTION.  373 

For  the  purpose  of  learning  the  intention,  all  statutes  relating 
to  the  same  subject  are  to  be  compared,  and  so  far  as  still  in 
force  brought  into  harmony,  if  possible,  by  interpretation, 
though  they  may  not  refer  to  each  other,  even  after  some  of 
them  have  expii'ed  or  been  repealed.^  An  amendatory  act 
and  the  act  amended  are  to  be  construed  as  one  statute,  and 
no  portion  of  either  is  to  be  held  inoperative  if  it  can  be  sus- 
tained without  wresting  words  from  their  appropriate  mean- 
ing.^ AVhere  a  statute  is  made  in  addition  to  another  statute 
on  the  same  subject,  without  repealing  any  part  of  it,  the  pro- 
visions of  both  must  be  construed  together,* 

§  289.  Interpretation  with  reference  to  the  common  law. — 
Statutes  are  but  a  small  part  of  our  jurisprudence.  The  prin- 
ciples of  the  common  law  pervade  and  permeate  everything 
which  is  subject  to  legal  regulation.  Such  law  defines  rights 
and  wrongs  of  every  description  and  the  remedies  for  pubhc 
and  private  redress.  By  its  principles  statutes  are  read  and 
construed.  They  supplement  or  change  it,  and  it  adjusts  itself 
to  the  modification  and  operates  in  conjunction  and  harmony 
with  them.  If  words  from  its  vocabulary  are  employed  in 
them  it  expounds  them.  If  the  statutes  are  in  derogation  of 
it,  it  yields  and  bides  its  time ;  if  they  are  cumulative,  it  still 
continues.''  Kules  of  interpretation  and  construction  are  de- 
rived from  the  common  la\v,^  and  since  that  law  constitutes 
the  foundation  and  primarily  the  body  and  soul  of  our  juris- 
prudence, every  statutory  enactment  is  construed  by  its  light 
and  with  reference  to  its  cognate  principles.® 

Adams,  1  IMacq.  H.  L.  Cas.  130 ;  Cope-  as  to  persons  who  aid,  abet  or  coun- 

land,  Ex  parte,  2  DeG.  M.  &  G.  914.  sel  or  procui-e  the  selling  or  giving 

lid.  away  such  Uquor,  the  principles  of 

2Harrell  v.  Harrell,  8  Fla.  4G;  the  common  law  in  respect  to  ao- 
McFate's  Appeal,  105  Pa.  St  323.  See  cessorics  before  the  fact  will  sup- 
Mitchell  V.  Duncan,  7  Fla.  13,  plement  tlie  statute.   Walton  v.  State, 

3  Pearce  v.  Atwood,  13  Mass.  824,  62  Ala.  197.    A  statutory  felony  has 

344 ;  Reg.  v.  Toubridge  Overseers,  L.  common-law  incidents.    Rex  v.  Sadi> 

R.  13  Q.  B.  Div.  342 ;  Van  Riper  v.  1  Leach,  C.  C.  468. 

Essex  P.  R.  Board,  38  N.  J.  L.  23.  =  Rice  v.  Raihoad  Co.  1  Black,  358, 

*  Ryan  v.  Couch,  66  Ala.  244 ;  Low-  374 ;    Charles  River    Bridge    Co.   v, 

enberg  v.  People,  27  N.  Y.  336 ;  State  v.  Warren  Bridge  Co.  11  Pet  545. 

Pierson,  44  Ai-k.  265 ;  Holt  v.  Agnew,  <>  Edwai'ds  v,  Gaulding,  38  JMiss,  118 ; 

67  Ala.  360.    Where  a  statute  pro-  Howe  v.  Peckham,  6  How.  Pr.  229 ; 

viding  a  penalty  for  seUing  or  giving  Rice  v.  Railroad  Co.  1  Black,  358. 
away  intoxicating  Uquor  was  silent 


ST-i  INTEBPEETATION   AND   CONSTKUCTION. 

§  290.  It  is  not  presumed  that  the  legislature  intended  to 
make  any  innovation  upon  the  common  law  further  than  the 
necessity  of  the  case  required.^  In  other  words,  statutes  in  der- 
ogation of  it,  and  especially  of  a  common-law  right,  are  strictly 
construed,  and  wiU  not  be  extended  by  construction  beyond 
their  natural  meaning.^  When  by  a  statute  a  charge  is  cre- 
ated on  property  for  the  satisfaction  of  a  debt,  unless  the  inten- 
tion is  clearly  expressed,  or  is  justly  and  fauiy  to  be  imphed, 
it  cannot  be  intended  that  such  charge  has  a  superiority  which 
the  common  law  does  not  attach  to  similar  charges,  nor  es- 
pecially such  superiority  as  the  common  law  has  carefully 
withheld.'  It  will  be  so  construed,  if  possible,  as  not  to  in- 
terfere with  fundamental  rights.^  The  best  construction  of  a 
statute  is  to  construe  it  as  near  to  the  rule  and  reason  of  the 
common  law  as  may  be,  and  by  the  course  which  that  observes 
in  other  cases.^  Where  a  statute  directs  anything  to  be  done 
generally  and  does  not  appoint  any  special  manner,  it  is  to  be 
done  according  to  the  course  of  the  common  law.^ 

§  291.  In  all  doubtful  matters,  and  when  the  statute  is  in 
general  terms,  it  is  subject  to  the  principles  of  the  common 

1  Id  ;  Scaif e  v.  Stovall,  67  Ala.  237 ;  3  Jones'  (N.  C.)  L.  357 ;  Edwards  v. 
Keecli  V.  Baltimore,  etc.  R.  R.  Co.  17  Gaulding,  38  Miss.  118 ;  HoUman  v. 
Md.  32 ;  Hooper  v.  Mayor,  etc.  12  id.  Bennett,  44  INIiss.  322 ;  Warner  v. 
464;  Davis  v.  Commonwealth,  17  Fowler,  8  Md.  25 ;  Brown  v.  Barry,  3 
Gratt  617 ;  WUbur  v.  Crane,  13  Pick.  DaU.  365 ;  Shaw  v.  Railroad  Co.  101 
284;  Glover  v.  Alcott,  11  Mich.  470;  U.  S.  557;  Lord  v.  Parker,  3  AUen, 
HeiskeU  v.  Mayor,  etc.  65  Md.  125 ;  127 ;  State  v.  Norton,  23  N.  J.  L.  33 ; 
Dwar.  on  St  695 ;  1  Kent's  Com.  464  Mvdlin  v.  McCreary,  54  Pa.  St.  230 ; 
and  note.  Howey  v.  MUler,  67  N.  C.  459 ;  Heam 

2  Gunter  v.  Leckey,  30  Ala,  591 ;  v.  Ewin, .  3  Cold.  399 ;  Stewart  v. 
State  V.  Whetstone,  13  La,  Ann.  376 ;  Sti'inger,  41  Mo.  400 ;  Rue  v.  Alter,  5 
Glover  v.  Alcott,  supra;  Sibley  v.  Denio,  119;  Millered  v.  Railroad  Co. 
Smith,  2  Mich.  486 ;  Shai-p  v.  Spek,  9  How.  Pr.  238 ;  NeweU  v.  Wheeler, 
4  Hill,  76;  Sharp  v.  Jolmson,  id.  92;  48  N.  Y.  486;  Smith  v.  Moffat,  1 
Esterley's  Appeal,  54  Pa.  St.  192 ;  Com-  Barb.  65 ;  Graham  v.  Van  Wyck,  14 
monwealth  v.  Knapp,  9  Pick.  496;  id.  531 ;  Perkins  v.  Perkins,  62  id.  531 ; 
Gibsonv.Jenney,  15  Mass.  205;  Melody  Bussing  v.  Bushnell,  6  Hill,  382;  Ei- 
V,  Reab,  4  id.  471 ;  Wilbur  v.  Crane,  13  lers  v.  Wood,  64  Wis.  422. 

Pick.  284;  SuUivan  v.  La  Crosse,  etc.  sscaife  v.  StovaU,  67  Ala.  237. 
P.    Co.    10    Minn.    386 ;     Dwelly    v.  *  Bush  v.  Brainard,  1  Cow.  78. 
DweUy,    46    Me.    377 ;    Burnside    v.  5  Bac.  Abr.  Statutes,  I. ;  Stowell  v. 
Whitney,  21  N.  Y.  148 ;  Lock  v.  MU-  Zouch,  1  Plowden,  365 ;  Miles  v.  Wil- 
ier, 3  Stew.  &  Port.  13 ;   Young  v.  hams,  1  P.  Wms.  249,  252. 
McKenzie,  3  Ga,  31 ;  BaUey  v.  Bryan,  ^  I(L  ;  Rex  v.  Simpson,  1  Str.  45. 


INTEKPKETA'J'ION    AND   CONSTRUCTION.  375 

law ;  it  is  to  receive  such  a  construction  as  is  agreeable  to 
that  law  in  cases  of  the  same  nature.'  A  statute  in  afflrm 
ance  of  a  rule  of  the  common  law  will  be  construed,  as  to  its 
consequences,  in  accordance  with  such  law.'-  So  provisions 
which  are  intended  to  remedy  defects  in  the  common  law 
must  be  read  and  construed  in  the  light  of  that  law.  When 
words  of  definite  signification  therein  are  used  in  such  pro- 
visions, and  there  is  no  intention  manifest  that  they  are  to  be 
taken  in  a  different  sense,  they  are  to  be  deemed  employed  in 
their  known  and  defined  common-law  meaning.^ 

§  292.  Extraneous  facts  in  aid  of  construction.—  Where  the 
meaning  of  a  statute  or  any  statutory  provision  is  not  plain,  a 
court  is  warranted  in  availing  itself  of  all  legitimate  aids  to  as- 
certain the  true  intention ;  and  among  them  are  some  extrane- 
ous facts.  The  object  sought  to  be  accomplished  exercises  a 
potent  influence  in  determining  the  meaning  of  not  only  the 
principal  but  also  the  minor  provisions  of  a  statute.  To  as- 
certain it  fully  the  court  will  be  greatly  assisted  by  knowing, 
and  it  is  permitted  to  consider,  the  mischief  intended  to  be 
removed  or  suppressed,  or  the  necessity  of  any  kind  which  in- 
duced the  enactment.^  If  the  statute  has  been  in  force  for  a 
long  period  it  may  be  useful  to  know  what  w^as  the  contem- 
porary construction ;  its  practical  construction ;  the  sense  of 
the  legal  profession  in  regard  to  it ;  the  course  and  usages  of 
business  which  it  will  affect.  It  may  be  necessary  to  apply  the 
meaning  of  terms  of  art  which  it  may  contain.^     It  is  appar- 

•  Greenwood  v.  Greenwood,  28  Md.  Wash.  209 ;  Lewis  v.  State,  3  Head, 

oTO;  Arthur  v.  Bokenham,  11  Mod.  127;  HoUinan  v.  Benuet,  44  iliss.  323. 

150;  Miles  v.  Wdhams,  1  P.  Wms.  '•Gorham    v.    Bishop    of    Exeter, 

252 ;   Wallace  v.   Taliaferro,  2  Call,  Moore's    Case  of,  462 ;   Hawkins   v. 

462.  Gathercole,  6  De  G.  M.  &  G.  1 ;  Ton- 

2  Baker  V.  Baker,  13  Cal.  87.  nele  v.  HaU,  4  N.  Y.  146;  Clark  v. 

3  Holt  V.  Agnew,  67  Ala  360 ;  IMcCool  Jauesville,  10  Wis.  136 ;  Dodge  t.  Gar- 
V.  Smith,  1  Black,  459 ;  Rico  v.  Riil-  diner,  31  N.  Y.  239 ;  Big  Black  Creek, 
road  Co.  id.  35S ;  Vincent,  Ex  parte,  etc.  Co.  v.  Commonwealth,  94  Pa.  St. 
26  Ala,  145 ;  United  States  v.  INiagill,  450 ;  Keith  v.  Quinney,  1  Oregon,  364 ; 
1  Wash.  463 ;  4  Dall.  426 ;  Adams  v.  Ruggles  v.  lUinuis.  108  U.  S.  526. 
Turrentiue,  8  Ired.  L.  147 ;  Brocket  *  It  ^\  as  held  in  Rex  v.  ^Masliita,  6 
V.  Raih'oad  Co.  14  Pa.  St  241 ;  Allen's  Ad.  &  E.  153,  that  tlie  word  "mhab- 
Appeal,  99  id.  196 ;  Apple  v.  Apple,  1  itauts  "  in  a  charter  has  not  in  itself 
Head,  348 ;  The  Kate  Heron,  6  Saw-  any  definite  legal  meaning,  but  must 
yer,  106 ;    United  States  v.  Jones,  3  be  explained  in  each  case,  extrinsic- 


376  INTEErRETATION    AND    CONSTKUOTION. 

ent,  therefore,  that  the  court  must  bring  to  its  assistance  a 
very  considerable  amount  and  variety  of  extrinsic  information, 
which  it  is  presumed  to  possess  and  can  resort  to  at  pleasure, 
as  occasion  requires,  as  matters  of  which  it  has,  in  a  technical 
sense,  judicial  knowledge.  Therefore,  preliminary  to  the  con- 
sideration of  some  of  these  collateral  aids,  it  will  be  pertinent 
and  useful  to  inquu-e  briefly  what  facts  other  than  the  letter 
of  the  law  itself  are  within  judicial  cognizance. 

§  293.  Judicial  knowledge. —  Certain  classes  of  facts  are  so 
fixed  in  theu"  nature  and  so  notorious  that  courts  take  notice 
of  them  and  they  are  available  without  proof.  They  are,  first, 
matters  of  public  law  which  all  are  bound  to  know ;  second, 
matters  so  notorious  as  to  be  regarded  as  universally  known ; 
and  thu'd,  matters  peculiarly  within  the  cognizance  of  the  par- 
ticular court.  The  courts  take  notice  not  only  of  the  existence 
but  the  tenor  of  aU.  public  statutes  which  are  laws  of  the  land 
within  their  jurisdiction,  whether  state  or  national ;  this  knowl- 
edge includes  their  commencement,  expu'ation  or  repeal,'  and 
judicial  decisions  construing  them ;  ^  if  declared  by  competent 
authority  unconstitutional,  their  invaUdity  is  at  once  to  be 
judicially  noticed.''  When  one  state  recognizes  acts  done  in 
pursuance  of  the  laws  of  another  state,  as,  for  example,  in  certi- 
fying the  acknowledgment  of  the  execution  of  a  deed,  its  courts 
win  take  judicial  cognizance  of  those  laws  so  far  as  it  may  be 
necessary  to  determine  the  validity  of  the  acts  alleged  to  be  in 
conformity  with  them.*  The  federal  courts  while  exercising 
their  original  jurisdiction  take  notice  of  the  statutes  of  each  of 
the  states ;  and  the  supreme  court,  in  the  exercise  of  its  ap- 
pellate jurisdiction,  does  the  same.^     But  the  latter  court,  in 

aUy,  by  evidence  of  usage,  or  by  ref-  y.  Chubb,  16  Gratt.  284 ;  Miller  v. 
erence  to  the  context  and  objects  of  McQuerry,  5  McLean,  469 :  United 
the  charter.  See  Smith  v.  Lindo,  4  C.  States  v.  Tiuner,  11  How.  663;  Car- 
B.  (N.  S.)  395.  penter  v.  Dexter,  8  Wall  518 ;  Fourth 
1  Kessel  v.  Albetis,  56  Barb.  363 ;  Nat.  Bank  v.  Francklyn,  120  U.  S.  747. 
Morris  v.  Davidson,  49  Ga,  361;  The  '^Hmde  v.  Vattier,  5  Pet.  398;  El- 
Scotia,  14  Wall  170 ;  Merrill  v.  Daw-  mendorf  v.  Taylor,  10  Wheat  152 ; 
son,  Hempst.  563 ;  Jasper  v.  Porter,  3  Pennington  v.  Gibson,  16  How.  65,  81. 
McLean,  579 ;  Jones  v.  Hays,  4  id.  » Cash  v.  State,  10  Humpli.  111. 
521 ;  Terry  v.  Merchants'  &  Plant-  *  Cai-penter  v.  Dexter,  8  WaU.  at 
ers'  Bank,  66  Ga.  177 ;  Bird  v.  Cora-  p.  531 ;  Shotwell  v.  Harrison,  22  Mich, 
monwealth,  21  Gratt.  800;  Mims  v.  410. 
Swartz,  37  Tex.  13;   Bayly's  Adm'r  aCoui'se  v.  Stead,  4  DalL  22,  27, 


INTERPKETATION   AND    CONSTRCTCTION. 


the  exercise  of  such  jurisdiction  on  error  to  the  highest  court 
of  a  state,  administers  the  kiw  in  tlic  same  view  as  the  state 
court  and  can  take  no  broader  judicial  notice.' 

§  294.  The  requirement  to  take  notice  of  puljhc  laws  neces- 
sarily includes  taking  notice  of  all  facts  and  proceedings  which 
concern  their  vahdity  and  interpretation.'-  "  If  the  words  of 
a  statute  are  really  and  faiiiy  doubtful,"  said  Lord  Cole- 
ridge, C.  J.,  "  then,  according  to  well-known  legal  principles 
and  principles  of  common  sense,  historical  investigations  may 
be  used  for  the  purpose  of  clearing  away  the  obscurity  which 
the  phraseology  of  the  statute  creates."  *  Whatever  is  de- 
cisive evidence  relative  to  the  due  enactment  of  a  statute, 
whether  it  be  only  the  certificates  of  the  presiding  officers,  the 
statute*,  record,  or  also  the  journals  of  the  legislative  bodies, 
the  courts  which  must  take  notice  of  the  laws,  and  therefore 
have  necessarily  to  determine  which  are  valid  and  duly  en- 
acted, may  consult.^    A  treaty  is  the  supreme  law  of  the  land, 

note ;  Hinde  v.  Vattier,  5  Pet  398 ;     v.  The  CoUector,  6  Wall  499 ;  DeBow 


Owiugs  V.  HuU,  9  id.  607, 625 ;  United 
States  V.  Turner,  11  How.  663,  668 ; 
Pennington  v.  Gibson,  16  id,  65 ;  Cov- 
ington Drawbridge  Co.  v.  iShepherd, 
20  id.  227,  230 ;  Clieever  v.  AVilaou,  9 
WaU.  108 ;  Junction  R.  Co.  v.  Bank  of 
Asliland,  12  WalL  226, 230 ;  Lamar  v. 
Micou,  114  U.  S.  218;  Foui-tli  Nat. 
Bank  v.  Francklyn,  120  id.  747,  751 ; 
Hanley  V.  Donogiiue,  116  id.  1,  6. 

1  Hanley  v.  Donoghue,  116  U.  S.  1. 
In  this  case  the  coui't  say  that  State 
of  Ohio  V.  Hinchman,  27  Pa.  St.  479, 
and  Paine  v.  Insm'ance  Co.  11  R.  I. 
411,  were  decided  on  a  misapprehen- 
sion of  the  functions  of  tliat  court. 
See  Butcher  v.  Bank  of  Brownsville, 
2  Kan.  70;  Jarvis  v.  Robinson,  21 
Wis.  523;  Hohbs  v.  Mempliis,  etc. 
R.  R  Co.  9  Heisk.  879 ;  Baptiste  v. 
De  Volunbran,  5  H.  &  J.  86,  98 ;  Bank 
of  U.  S.  V.  Merchants'  Bank,  7  Gill, 
415;  Coates  v.  Mackey,  56  Md.  416, 
419 ;  Green  v.  Van  Buskii-k,  7  WalL 
139. 

2  People  V.  Mahaney,  13  Mich.  481 ; 
Coburn  v.  Dodd,  14  Ind.  317  ;  Gardner 


V.  People,  1  Denio,  9 ;  Berliner  v. 
Waterloo,  14  Wis.  378;  People  v. 
Purdy,  2  HiU,  31 ;  Board  of  Super- 
visors V.  Heenan,  2  Miun.  330. 

3  Regiua  v.  Most,  L.  R  7  Q.  B.  Div. 
at  p.  251. 

••People  V.  Malianey,  13  ilich.  481 ; 
Legg  V.  Mayor,  42  Md.  203 :  Berry  v. 
Baltimore,  etc.  Co.  id.  446 ;  People  v. 
DeWolf,  62  111.  253;  Board  of  Super- 
visors V.  Heenan,  2  jMinu.  330 ;  People 
V.  River  Raism,  etc.  R.  R.  Co.  12 
Mich.  389 ;  People  v.  Purdy,  2  Hill, 
31 ;  De  Bow  v.  People,  1  Denio,  9 ; 
Commercial  Bank  v.  Sparrow,  3 
Denio,  97 ;  Duncombe  v.  Prtndle,  12 
Iowa,  1 ;  Green  v.  WeUer,  32  Miss. 
650 ;  Pangborn  v.  Young,  33  N.  J.  L. 
39 ;  Kilbourn  v.  Thompson,  103  U.  S. 
168 ;  Pacific  R.  R.  Co.  v.  The  Gov- 
ernor, 23  Mo.  353 ;  Opinion  of  Justices, 
45  N.  H.  607;  State  v.  McLellaud,  18 
Neb.  236 ;  Gai'dner  v.  The  Collector, 
6  Wall.  499 ;  Moody  v.  State,  48  Ala. 
115;  Jones  v.  Hutchinson,  43  id. 
721 ;  Southwark  Bank  v.  Common- 
wealth, 26  Pa.  St  446. 


378  INTERPRETATION   AND   CONSTRUCTION. 

and  as  such  is  within  judicial  knowledge  of  the  courts ;  ^  they 
have  even  knowledge  of  such  foreign  laws  as  the  treaties  dis- 
close.^ 

§  295.  The  courts  have  judicial  knowledge  of  aU  territorial 
divisions,  corporations  and  institutions  established  or  recog- 
nized by  public  statutes.^  The  orphans'  court  of  Washington 
county,  in  the  District  of  Columbia,  being  created  by  a  pub- 
lic statute  of  the  United  States,  its  seal  was  judicially  recog- 
nized by  the  courts  of  Maryland,*  Courts  take  notice  of  the 
constitution  as  the  fundamental  law,  and  of  amendments 
thereto,  and  when  they  take  effect.*  They  take  notice  of  the 
common  law  and  the  conditions  of  the  country  which  affected 
its  introduction  and  adoption ;  also  the  law  of  nations,"  and 
the  law  merchant."  They  do  not  take  notice  of  the  written 
laws  of  another  state  or  of  foreign  countries ;  but  the  courts 
of  a  state  take  notice  of  its  antecedent  laws,  whatever  their 
origin ;  it  is  so  though  the  state  was  carved  out  of  an  older 
state  or  acquired  from  a  foreign  power.^ 

§  298.  Courts  take  judicial  notice  of  customs  which  are  gen- 
eral and  universally  known,  as  of  the  meaning  of  C  O.  D. 
affixed  to  packages  sent  by  common  carriers,  and  the  practice 
and  responsibilities  relative  thereto ;  ^  the  business  of  mercan- 
tile agencies ;  ^"  the  commercial  usage  to  observe  Sundays  and 

1  Dole  V.  Wilson,  16  Minn.  525.  &  G.  239 ;  Wiggins  F.  Co.  v.  Chicago 

2  Montgomery  V.  Deeley,  3  Wis.  709.  &  A.  R.  Co.   5  Mo.  App.  347 ;  Branch 

3  Oxford  Poor  Rate,  8  E.  &  B.  184,  v.  Burnley,  1  CaU,  147 ;  Consequa  v. 
211;  Harding  v.  Sti'ong,  42  lU.  148;  Willings,  1  Pet  C.  C.  225;  Munn  v. 
Sullivan  V.  People,  122  IlL  885 ;  State  Burch,  25  IlL  35. 

V.   Reader,   60  Iowa,  527 ;    Luck  v.  s  United  States  v.  Tui-ner,  11  How. 

State,  96  Ind.  16.  663 ;  Chouteau  v.  Pierre,  9  Mo.  3 ;  Ott 

*  Mangim  v.  Webster,  7  Gill,  78.  v.  Soulard,  id.  581 ;  Payne  v.  Tread- 

5  Graves  v.  Keaton,  3  Cold.  8.  well,  16  Cal.  220 ;  Pecquet  v.  Pecquet, 

6  The  Scotia,  14  Wall.  170.  In  tlais  17  La.  Ann.  204 ;  Bouldm  v.  Phelps,  30 
case  the  coui-t  say :  "  Historically,  we  Fed.  Rep.  547 ;  Stevens  v.  Bomar,  9 
know  that  before  the  close  of  the  Humph.  546;  Henthorn  v.  Doe,  1 
year  1864  nearly  all  the  commercial  Blackf.  157;  Green  v.  Goodall,  1  Cold, 
nations  of  the  world  had  adopted  the  404 ;  WUson  v.  Smith,  5  Yerg.  379 ; 
same  [navigation]  regulations  re-  Delano  v.  Jophng,  1  Litt.  117. 
specting  lights,  and  that  they  were  9  State  v.  Intoxicating  Liquors,  73 
recognized  as  having  adopted  them."  Me.   278.     See    contra,   ]\IcNichol  v. 

'  Reed  v.  Wilson,  41   N.  J.  L.  29 ;    Pacific  Exp.  Co.  12  Mo.  App.  401. 
Goldsmith  v.   Sawyer,  46  Cal.   209;        lOHohnes    v.  Harrington,  20    Mo. 
Bank  of  Columbia  v.  Fitzhugh,  1  H.    App.  661. 


INTERPKETATION    A.XD   CONSTKUCTION. 


579 


holidays.^  The  custom  of  the  road,  as  to  passing  by  on  the  righi 
or  left ;  -  general  and  notorious  customs  of  the  sea  to  be  ob- 
served by  vessels.'  Judicial  notice  is  not  taken  of  private 
statutes,^  local  customs,  by-laws  or  regulations  of  corpora- 
tions, boards  and  officers.'^  Municipal  ordinances  are  not  judi- 
cially noticed  except  by  the  courts  of  the  municipahty,  unless 
otherwise  directed  by  statute." 

§  2D7.  Facts  relative  to  foreign  states  and  nations. — 
Courts  take  notice  of  the  existence  of  foreign  nations,  their 
forms  of  government  as  recognized  by  the  executive  and  legis- 
lative departments,  their  emblems  of  sovereignty,  as  flags  and 
seals ; "  the  status  of  the  several  states  of  the  Union  under  the 
constitution ;  that  they  have  proper  judicial  tribunals,  legisla- 
tive and  executive  departments ;.  their  great  seals,  and  the  gen- 
eral nature  of  their  jurisprudence.^ 


1  Sasscer  v.  Farmers'  Bank,  4  Md. 
409. 
•-iTurley  v.  Thomas,  8  C.  &  P.  103. 

3  The  Scotia,  14  WaU,  170. 

4  Workiugmen's  Bank  v.  Converse, 
33  La.  Ann.  963 ;  Broad  Street  Hotel 
Co.  V.  Weaver's  Administrator,  57 
Ala.  26. 

5  Youngs  V.  Ransom,  31  Barb.  49 ; 
Cam.eron  v.  Blackman,  39  IVIich.  108 ; 
Turner  v.  Fish,  28  Miss.  306:  Gold- 
smith V.  Sawyer,  46  Cal.  209 ;  Longes 
V.  Kennedy,  2  Bibb,  607 ;  Lewis  v. 
]McClui-e,  8  Oregon,  273 ;  Seymour  v. 
Marvin,  11  Barb.  80;  Sullivan  v. 
Hense,  2  Colo.  424 ;  Jolmson  v.  Rob- 
ertson, 31  Md.  476 ;  Sarahass  v.  Arm- 
strong, 16  Kan.  192 ;  Palmer  v.  Ald- 
ridge,  16  Barb.  131 ;  Hensley  v.  Tar- 
pey,  7  Cal.  288 ;  South  &  N.  Ala.  R.  R. 
Co.  V.  Wood,  74  Ala.  449 ;  Johnston  v. 
Wilson,  29  Gratt.  379. 

«Garvki  v.  Wells,  8  Iowa,  286; 
Downing  v.  Miltonvale,  36  Kans. 
740 ;  Case  v.  Mayor,  etc.  30  Ala.  538. 

'The  Santissima  Trinidad,  7  Wheat. 
283;  United  States  v.  Palmer,  3  id. 
634;  Lincoln  v.  Battelle,  6  Wend. 
475;  Griswold  v.  Pitcairn,  2  Conu. 
85 ;  City  of  Berne  v.  Bank  of  Eng- 


land, 9  Ves.  347 ;  Bolder  v.  Huntmg- 
fleld,  11  id.  283;  Church  v.  Hubbart, 
2  Cranch,  187. 

8Wlmrt.  on  Evi  §  314;  Drake  v. 
Glover,  30  Ala.  382 ;  Rape  v.  Heaton, 

9  Wis.  328 ;  Ripple  v.  Ripple,  1  Rawle, 
386 ;  Whitesides  v.  Poole,  9  Rich.  68 ; 
Anderson  v.  Anderson,  23  Tex.  639 ; 
Hoyt  V.  McNeil,  13  Mirm.  390;  De 
Sobry  v.  De  Laistre,  2  H.  &  J.  191 ; 
Irving  V.  McLean,  4  Blackf.  52 ;  ]\Ion 
roe  V.  Douglass,  5  N.  Y.  447 ;  Whit- 
ford  V.  Panama  R.  R  Co.  23  id.  405 . 
Carey  v.  Cincinnati,  etc.  R,  R  Co.  5 
Iowa,  357 ;  Commonwealth  v.  Snow- 
den,  1  Brewst  218 ;  Simms  v.  South- 
em  Exp.  Co.  38  Ga.  129 ;  Copley  v. 
Sanf ord,  2  La,  Ann.  335 ;  Anderson 
V.  Folger,  11  La.  Ann.  269;  Boggs  v. 
Reed,  5  Mart.  673 ;  Newton  v.  Cocke, 

10  Ark.  169 ;  Thm-ston  v.  Percival,  1 
Pick.  415;  Mason  v.  Wash,  1  IlL  16; 
Wilson  V.  CockriU,  8  Mo.  1 ;  Hough- 
taUng  V.  Ball,  19  Mo.  84 ;  Taylor  v. 
Boardman,  25  Vt  581;  Miller  v. 
Avery,  2  Barb.  Ch.  582 ;  Billingsley 
V.  Dean.  11  IncL  331;  Champion  v. 
Kille,  15  N.  J.  Eq.  476 ;  Davis  v.  Bow- 
ling, 19  Mo.  651 ;  De  Cells  v.  United 
States,   13  Ct  CL  117;  WilUams  v. 


380  INTEEPRETATION    AJSTD    CONSTKUCTION. 

§  298.  The  court  will  not  hear  proof  of  extrinsic  facts  known 
to  the  legislature  or  members  thereof  which  are  supposed  to 
indicate  their  intention  in  passing  a  law.^  But  circumstances 
known  to  all  the  public,  such  as  what  was  the  law  at  the  time, 
or  what  it  was  supposed  to  be,  are  proper  to  be  considered  in 
looking  for  the  intention  of  the  legislature  when  not  exphcitly 
expressed.^  The  courts  take  more  particular  notice  of  the 
history  of  the  state  in  which  they  sit.  "  Every  judge  is  bound 
to  know,"  says  Heydenfeldt,  J.,  "the  history  and  leading 
traits  which  enter  into  the  history  of  the  country  in  which  he 
presides.  This  we  have  held  before,  and  it  is  also  an  admitted 
doctrine  of  the  common  law.  We  must  therefore  know  that 
this  state  has  a  large  territory ;  that  upon  its  acquisition  by 
the  United  States,  from  the  sparseness  of  its  population,  but  a 
small  comparative  proportion  of  its  land  had  been  granted  to 
private  individuals ;  that  the  great  bulk  of  it  was  land  of  the 
government ;  that  but  little  of  it,  as  yet,  has  been  acquired 
by  individuals  by  purchase ;  that  our  citizens  have  gone  upon 
the  public  land  continuously,  from  a  period  anterior  to  the 
organization  of  the  state  government  to  the  present  time;* 
upon  these  lands  they  have  dug  for  gold;  excavated  mineral 
rock;  constructed  ditches,  flumes  and  canals  for  conducting 
water ;  built  mills  for  sawing  lumber  and  grinding  corn ;  es- 
tablished farms  for  cultivating  the  earth ;  made  settlements  for 
the  grazing  of  cattle ;  laid  off  towns  and  villages ;  felled  trees ; 
diverted  water-courses ;  and,  indeed,  have  done  in  the  various 
enterprises  of  life  aU  that  is  usual  and  necessary  in  a  high 
condition  of  civiUzed  development.  All  of  these  are  open  and 
notorious  facts,  charging  with  notice  of  them  not  only  the 
courts  who  have  to  apply  the  law  in  reference  to  them,  but 
also  the  government  of  the  United  States,  which  claims  to  be 
the  proprietor  of  these  lands;  and  the  government  of  the 
state  within  whose  sovereign  jurisdiction  they  exist."  * 

The  supreme  court  of  the  United  States  took  jurisdiction 
on  a  writ  of  error  of  a  suit  depending  for  the  amount  in  con- 
State,  67  Ga.  260.  It  has  been  held  in  i  Delaplane  v.  Crenshaw,  15  Gratt 
Texas  that  the  courts  of  that  state  do    at  p.  479. 

not  take  judicial  notice  that  the  com-  2  Keyport  St.  B.  Co.  v,  Farmei-s' 
mon  law  is  in  force  in  other  states.  Transportation  Co.  18  N.  J.  Eq.  at 
Bradshaw  v.  Mayfleld,  18  Tex.  31.  p.  24. 

3  Conger  v.  Weaver,  6  Cal  54a 


INTERPEETATION^   AND   COXSTRUCTION.  381 

troversy  on  the  value  of  a  mining  claim  apart  from  fee-simple 
I'igbts  in  the  suit  by  patent.  In  part  the  court  sustains  its 
jurisdiction  on  judicial  knowledge  that,  "  without  interference 
by  the  national  government,  but  under  its  implied  sanction, 
vast  mining  interests  have  grown  up,  employing  many  mill- 
ions of  capital,  and  contributing  largely  to  the  prosperity 
and  improvement  of  the  whole  country."  ■ 

The  courts  take  notice  of  the  population  of  a  state  accord- 
ino-  to  the  results  of  the  official  census ;  ■^  also  of  the  derivation 
of  land  titles.^  It  was  judicially  noticed  in  Arkansas  that  cer- 
tain portions  of  the  state  were  in  insurrection  and  under  the 
CDutrol  of  the  United  States ;  *  in  Tennessee,  that  the  courts  in 
a  particular  county  were  closed,  civil  law  suspended,  and  mili- 
tary law  in  force  during  the  civil  war ;  ^  in  Texas,  that  the  gov- 
ernment of  the  state  was  administered  by  military  authority, 
under  the  reconstruction  acts  of  congress,  and  that  the  military 
commander's  orders  had  the  force  of  law.^  Courts  will  notice 
that  the  Confederate  currency  was  imposed  by  force,  and  was 
at  great  discount ;  '^  the  accession  of  persons  to,  and  the  tenure 
of  office  under,  the  constitution  and  laws ;  ^  the  geography  and 
topography  of  the  state,  and  its  history  to  the  extent  that 
these  facts  and  transactions  are  of  public  and  general  inter- 
est ;  ^  of  the  boundaries  of  the  state,  the  extent  of  territorial 
jurisdiction,  its  civil  divisions  created  by  law,  and  notorious 
surveys,  streets,  areas  and  Unes.'"     So  the  times  prescribed  by 

1  Sparrow  v.  Strong,  3  Wall.  97,  9  Turner  v.  Patton,  49  Ala,  406; 
104  Williams  v.  State,  64  IncL  553 ;  Paj-ne 

2  Worcester  Bank  v.  Cheney,  94  v.  Treadwell,  16  CaL  220 ;  McKinnou 
I11.430;Peoplev.Williams,  64Cal.  87.  v.  BUss,  21  N.  Y.  206;  Ferdinand  v. 

3  Henthorn  v.  Doc,  1  Blackf.  157 ;  State,  39  Ala.  706 ;  Lanfear  v.  Mestier, 
Smith  V.  Stevens,  82  111.  554.  18  La.  Ann.  497 ;  Ashley  v.  Martin, 

*  Rice  V.  Shook,  27  Ark.  137.  50  Ala,  537 ;  Taylor  v.  Graham,  18  La. 

5  Killebrew  v.  Murphy,  3  Ilcisk.  546.  Ann.  656 ;  Andrews  v.  Knox  Co.  70 

6  Gates  V.  Jolmson  Co.  36  Tex.  144.  111.  65 ;  New  Orleans  Canal,  etc,  Co. 

7  Keppel  V.  Petersburg  Pu  R,  Ca  v.  Templeton,  20  La.  Ann.  141 ;  Bu- 
Chase's  Dec.  167.  ford  v.  Tucker,  44  Ala.  89 ;  United 

estate    V.  Williams,   5  Wis.   308;  States   v.  4000  Am.    Gold    Coin,    1 

Thompson  V.  Haskell,  21  lU.  215;  In-  Woolw.  217;  Hart  v.  State,  55  Ind. 

gram  v.  State,  27  Ala,  17:  Ragland  591;  Monroe  Co.  Com'i-s  v.  May,  67 

V.   Wynn,   37  id.   32 ;   Alexander  v.  Ind.  562 ;  Hart  v.  Bodley,  Hardm,  98. 

Burnham,  18  Wis.    199;   Burnett  v.  lo  Goodwin  v.  Appleton,  22  Me.  453 ; 

Henderson,  21  Tex.  588 ;  Dewees  v.  Gilbert  v.  Moline  AVater  Power  Co. 

Colorado  Ca  32  Tex.  570.  19  Iowa,  319 ;  King  v.  Kent,  29  Ala. 


382  IlSrTEEPEETATION    AND    COXSTEUCTION. 

law  for  holding  the  terms  of  the  various  courts  in  the  state 
will  be  judicially  noticed.^ 

§  299.  Courts  take  notice  who  are  their  own  oflBcers,  and 
of  their  signatures ;  ^  and  who  are  county  officers  within  their 
jurisdictions,^  A  court  will  take  judicial  notice  of  its  own  rec- 
ord of  proceedings  in  a  particular  case  before  it.  Thus,  on 
error  in  an  appellate  court  to  recover  a  second  judgment  in 
a  cause  in  which  a  former  judgment  had  been  reversfed,  it 
being  assigned  for  error  that  it  did  not  appear  by  the  rec- 
ord that  at  the  time  of  the  second  trial  the  cause  had  been 
remitted,  the  court  overruled  the  point  by  its  judicial  knowl- 
edge of  the  Temittitiir}  But  a  court  will  not  take  notice,  in 
deciding  one  case,  of  what  may  be  contained  in  the  record 
of  another  and  distinct  case,  unless  proved.^  The  record  in 
garnishment  is  so  far  a  part  of  the  record  in  the  cause  that  it 
will  be  judicially  noticed  therein." 

§  300.  Judicial  notice  of  historical  and  other  facts  related 
to  legislation. —  In  order  to  ascertain  the  purpose  or  inten- 
tion, if  it  is  not  clearly  expressed  in  a  statute,  or  that  such  pur- 
pose or  intention  may  be  carried  into  effect,  the  court  will  take 

542;    Brady   v.  Page,    59    Cal.    53;  Martin,    51    Me.    366;    Stoddard   v. 

Carson  v.  Dalton,  59  Tex.  500 ;  Peo-  Sloan,  65  Iowa,  680 ;  Vanderwerker 

pie  V.  Robinson,  17  CaL  363 ;  Central  v.  People,  5  Wend.  530. 

R.  R  Co.  V.  Gamble,  77  Ga.  584 ;  In-  i  Lindsay  v.  WiUiams,  17  Ala.  229 ; 

dianapolis,  etc.  R.  R.  Co.  v.  Case,  15  Morgan  v.  State,  12  Ind.  448 ;  Pugh 

Ind.  42 ;  Indianapolis,  etc.  R.  R.  Co.  v.  State,  2  Head,  227 ;  State  v.  Ham- 

V.  Stephens,  28  id.  429 ;  Fogg  v.  Hoi-  mett.,  7  Ark.  492 ;  GUliland  v.  Sellers, 

comb,  64  Iowa,  621 ;  Board  of  Com-  2  Oliio  St.  223.  See  McGinnis  v.  State, 

missioners  v.   Spitler,   13    Ind.   235 ;  24  Ind.  500. 

Brown  v.  Elms,  10  Humph,  135 ;  Gard-  2  YeU  v.  Lane,  41  Ark.  53 ;  Dyer  v. 

ner  v,  Eberhart,  82  HL  316 ;  Kile  v.  Last,  51  lU.  179 ;  Hanmann  v.  Mink, 

YeUowhead,  80  id.  208 ;  Ham  v.  Ham,  99  Ind,  279 ;  BueU  v.   State,  72  Ind. 

39  Me.  263 ;  Buckinghouse  v.  Gregg,  523 ;  People  v,  Lyman,  2  Utah,  30. 

19  Ind.  401 ;  Atwater  v.  Schenck,  9  » Wetherbee  v,  Dunn,  32  CaL  106 ; 

Wis,  160 ;  Prieger  v.  Exchange,  etc.  Templeton  v.  Morgan,  16  La.   Ann. 

Ins,  Co,  6  id,   89;  United  States  v.  438, 

Johnson,    2    Sawyer,    483 ;    Hill    v.  <  Bi-ucker  v.  State,  19  Wis,  539,  cit- 

Bacon,  43  LL  477 ;  State  v,  Ray,  97  ing  The  Santa  Maria,  10  Wheat  443 ; 

N,  C.  510 ;  Wright  v.   Hawkins,   28  Cash  v.  State,  10  Humph.  115,    See 

Tex.  453 ;  Wright  v,  Phillips,  2  Greene  also  State  v,   Bowen,   16  Kan,  475 ; 

(la.),  191;  Ross  v.  Austill,  2  Cal,  183;  National  Bank  v.  Biyant,  13  Bush, 

State  V.  Tootle,  2  Harr,  541 ;  La  Grange  419. 

V.  Chapman,   11   Mich,   499 ;  Solyer  *  National  Bank  v.  Bryant,  swgra. 

V.  Romanet,  52  Tex.  562 ;  Martin  v.  6  Farrar  v.  Bates,  55  Tex.  193. 


INTERPRETATION    AND   CONSTRUCTION.  383 

notice  of  the  history  of  its  terms  Avhen  it  Avas  enacted.^  It  if> 
needful  in  the  construction  of  all  instruments  to  read  tliem  in 
view  of  all  the  surrounding  facts.  To  understand  their  pur- 
port and  intended  application,  one  should,  as  far  as  possible, 
be  placed  in  a  situation  to  see  the  sul>ject  from  the  makers 
standpoint  and  study  his  language  with  that  outlook.  Stat- 
utes are  no  exception.^  It  accords  with  Lord  Coke's  rule,'  and 
a  rational  sense  of  what  is  suitable,  to  ascertain  what  were  the 
circumstances  with  reference  to  which  the  words  of  the  stat- 
ute were  used,  and  what  was  the  object  appearing  from  those 
circumstances  which  the  legislature  had  in  view.^  When  oc- 
casion arises  for  resort  to  such  extrinsic  facts,  a  court  may  ob- 
tain information  from  any  authentic  source.  As  was  said  by 
Mr.  Justice  Miller  in  Gardner  v.  The  Collector,^  "  from  any 
source  of  information  which  in  its  nature  is  capable  of  con- 
veying to  the  judicial  mind  a  clear  and  satisfactory  answer," 
"  always  seeking  first  for  that  which  in  its  nature  is  most  ap- 
propriate, unless  the  positive  law  has  enacted  a  different  rule." 
It  has  been  held  in  the  English  courts  that  when  a  statute  is 
supposed  to  have  been  founded  on  the  report  of  commissioners 
appointed  by  the  crown,  the  report  ought  not  to  be  referred 
to  in  a  court  of  justice  as  a  guide  in  construing  the  statute.* 

1  Aldridge  v.  Williams,  3  How.  9 ;  cliild  v.   Gwynne,   16  Abb.   Pr.   23 ; 

United  States  v.  Union  P.  R.  R.  Co.  91  Gorham  t.  Bishop  of  Exeter,  Moore's 

U.   S.   72;  State  v.  Nicholls,  30  La.  Case   of,  463;  Attorney-General   v. 

Ann.   (Ft  II)  980 ;  Sheriff  v.  Caddo  SiUem,  2  H.  &  C.  531 ;  Reg.  v.  Zu- 

Parish,  37  id.  788 ;  De  Celis  v.  United  lueta,  1  C.  &  K  215. 

States,   13  Ct   CL  117;  WiUiams  v.  5  6  Wall  at  p.  511. 

State,  67  Ga.  260.  6  Steele  v.  Midland  R.  Co.  L.  R  1  Ch. 

2Tonnele  v.  Hall,  4  N.  Y.  140;  282;  Martm  v.  Hemmmg,  18  Jur. 
Mclntyre  v.  Ingraham,  35  Miss.  25  ;  1002 ;  24  L.  J.  Ex.  5 ;  Salkeld  v.  Joliu- 
Sheriff  v.  Parish  of  Caddo,  37  La  Ann.  son,  2  C.  B.  756 ;  Farley-  v.  Bonliam,  2 
788 ;  State  v.  Judge,  12  id.  777 ;  Big  J.  &  H.  177 ;  Matter  of  Dean  of  York.  2 
Black  Creek,  etc.  Co.  v.  Common-  Q.  B.  34 ;  Ewart  v.  WiUiams,  3  Dre^\•. 
wealth,  94  Pa.  St.  450;  Ruggles  v.  21,  24;  Bank  of  Pa  v.  Common- 
Illinois,  108  U.  S.  526 ;  Crawfords-  wealth,  19  Pa  St  144. 156 ;  Arding  v. 
ville,  etc.  Co.  v.  Fletcher,  104  Ind.  97.  Bonner,  2  Jur.  (N.  S.)  763 ;  Southwark 

3  Heydon's  Case,  3  Rep.  Ha;  Case  of  Bank  v.  Commonwealth,  26  Pa  St. 

the  Marshalsea,  10  id.  73a.  446,  450.     See  Fellowes  v.  Clay,  4  Q. 

*  River  Wear  Com'rs  v.  Adamson,  B.   356 ;    Edger  v.   Count>'  Commis- 

L.  R  1  Q.  B.  D.  546 ;  2  App.  Cas.  764 ;  sioners,  70  Ind.  331 ;  Blake  v.  National 

Delaplane  v.  Crenshaw,  15  Gratt.  457 ;  Banks,  23  Wall.  307,  321. 
Smith  V.   Speed,   50  Ala  276 ;  Fair- 


384:  INTERPRETATION    AND    CONSTRUCTION. 

But  if  tlie  reasons  and  objects  of  the  law  are  made  known  by 
any  other  document  equally  authentic  and  certain,  as  the  re- 
port of  one  of  the  heads  of  departments,  it  may  be  referred  to 
to  aid  in  the  interpretation  of  doubtful  or  ambiguous  language 
in  the  law.^  It  was  held  in  State  v.  Cloksey,^  that,  in  the  in- 
terpretation of  words  used  in  the  constitution,  the  court  may 
derive  such  aid  as  may  be  afforded  by  looking  to  the  journals 
of  the  convention  which  framed  that  instrument,  to  ascertain 
in  what  sense  such  words  were  used  by  the  convention ; '  or 
journals  of  the  legislature  in  respect  to  the  history  of  the 
enactment.*  It  is  held  in  Indiana  that  the  journals  containing, 
the  proceedings  in  reference  to  a  bill  enacted  into  a  statute 
may  be  looked  to  by  the  courts  to  ascertain  the  intention  of 
the  legislature  in  enacting  it  if  it  be  ambiguous.^  In  Blake  v. 
National  Banks,^  the  journals  of  congress  were  referred  to, 
and  the  court  said  they  were  compelled  to  ascertain  the  legis- 
lative intention  in  that  way.'^  In  Illinois  they  may  be  put  in 
evidence,  and  when  offered  they  prove  themselves,  and  ma}' 
be  consulted  to  determine  whether  an  act  was  duly  passed." 
So  in  Alabama.^  In  Kentucky,  journals  may  be  proved  on  ixi\ 
issue  by  pleading  to  show  that  a  bill  was  not  duly  passed.^" 
There  has  been  occasionally  judicial  reference  to  declarations 
of  members  of  legislative  bodies,  but  such  aids  are  but  slightly 
relied  upon,  and  the  general  current  of  authority  is  opposed 
to  any  resort  to  such  aids.'^ 

1  United  States  v.  Webster,  Davies,    of  Howard  Co.  15  Kan.  194.  See  Cole- 
38 ;  Perkins  V.  Sewell,  1 W.  Black.  659 ;     man  v.  Dobbins,  8  Ind.  156. 
Fosdick  V.  Penysburg,  14  Ohio  St.  472 ;        «  23  WaU.  307. 

Moody  V.  State,  48  Ala.  115;  Clare  V.  'See    Fosdick    v.    Perrysbui'g,    14 

State,  5  Iowa,  509 ;  Division  of  How-  Ohio  St.  472;   Hebbert  v.   Purchas, 

ard  Co.  15  Kan.  194.  L.  R.  3  P.  C.  648. 

2  5  Sneed,  483.  *  Grob  v.  Cuslunan,  45  HL  119. 

3  State  V.  Douglass,  5  Sneed,  608.  ^  ISIoody  v.  State,  48  Ala,  115. 

See  Wis.   Cent  R.  R.  Co.  v.  Taylor  i"  Auditor  v.  Haycraft,  14  Bush,  284. 

Co.  52  Wis.  37.  ''  Re  Mew,  31  L.  J.  Bankniptcy,  89 ; 

*  Hill's  Adm'r  v.  Mitchell,  5  Ark.  Reg.  v.  Hertford  College,  L.  R,  3  Q.  B. 
608 ;  People  v.  Lyman,  3  Utah,  30.  Div.  707 ;  Att'y-Gen'l  v.  Sillem,  2  H.  & 
See  Bank  of  Penn.  v.  Commonwealth,  C.  521 ;  Cumberland  Co.  v.  Boyd,  113 
19  Pa.  St.  144;  Southwark  Bank  v.  Pa,St.  52,  57;  District  of  Columbia  v. 
Commonwealth,  26  id.  446.  Wasliiugton  Market,  108  U.  S.  2-13 ; 

*  Edger  v.  Board  of  Commissioners,  United  States  v.  Union  Pac.  R,  R.  Co. 
70  Ind.  331 ;  Wood  Mowing,  etc.  Co.  91  id.  72 ;  Akh-idge  v.  Williams,  3  How. 
V.  Caldwell,  54  Ind.  270,  279 ;  Division  9;   Taylor  v.  Taylor,  10  Minn.  107; 


INTEKPEETATION   AND   CONSTEUCTION.  385 

§301.  Judicial  liiioAvledgo  of  facts  in  general.— WLat  is 
matter  of  general  knowledge,  universally  accepted  and  acted 
upon,  courts  will  ex  officio  recognize  as  true.  They  will  avail 
themselves  of  it  in  the  exposition  of  statutes,  deliver  such  facts, 
when  pertinent,  to  juries,  and  will  not  permit  them  to  question 
their  verity.  Such  facts  cannot  be  precisely  defined;  their 
recognition  depends  on  their  certainty  and  notoriety,  and  the 
courts,  proceeding  with  their  usual  care  and  conservatism,  will 
resolve  doubts  by  rejecting  any  supposed  facts  in  a  particular 
case.^  Under  such  restrictions  they  judicially  recognize  what- 
ever has  the  recpisitc  certainty  and  notoriety  in  every  field  of 
knowledge,  in  every  walk  of  practical  life.  "  There  are  a  vast 
variety  of  things,"  said  Graves,  C.  J.,^  "  which  must  be  regarded 
as  matters  of  common  knowledge ;  things  which  every  adult 
person  of  ordinary  experience  and  intelligence  must  be  pre- 
sumed to  know ;  things  which  do  not  require  to  be  pleaded  or 
to  be  made  the  subject  of  specific  proof;  and  it  is  not  within 
the  province  of  a  court  to  leave  it  to  a  jury  to  find  contrary 
to  this  knowledge."  It  was  accordingly  held  that  the  question 
was  for  the  court  whether  a  railroad  company  was  guilty  of 
neghgence  in  leaving  a  box  freight  car  standing  still  at  a  high- 
way crossing  as  tending  to  frighten  horses  of  ordinary  gentle- 
ness.^ 

Leese  v.  Clark,  20  CaL  387;  Keyport,  2GUbeit  v.  Flint  &c.  R.  R.  Co.  51 

etc.  Co.  V.  Trans.  Co.  18  N.  J.  Eq.  13.  Mich.  488. 

Judges  who  have  been  members  of  3  Id.  In  IVIr.  Metcalfe's  very  instruct- 

the  legislatm-e  have  sometimes  men-  ive  article  found  in  28  Am.  L.  Reg. 

tioned  theur  knowledge  or  declara-  193,  he  says  at  p.  456 :"  There  remains 

tiouswliile  acting  in  that  capacity,  a  vast  array  of  facts  wliich  can  become 

Moyer  v.  Gross,  2  P.  &  W.  171 ;  Re  generally  known   only  tlu-ough  the 

Mew,  mpra;  Mounsey  v.  Ismay,  34  uniform  results  of  experience  in  Ufa 

L.  J.  Ex.  56 ;  3  H.  &  C.  486 ;  Hed-  From  the  innnense  multiphcity  of 

worth  V.  Primate,  Hard.  318 ;  McMas-  these  matters,  they  may  never  receive, 

ter  V.  Lomax,  2  Myl.  &  K  32 ;  Hud-  m  the  usual  form,  eitiier  historical  or 

son  V.  Tooth,  L.  R  3  Q.  B.  Div.  46 ;  scientific  indorsement    They  he  m 

Drummond  v.   Drummond,  L.  R  2  the  region  of  traditional  or  actual 

Ch.  45 ;  State  v.  Nicholls,  30  La.  Ann.  knowledge,  common  to  civilization, 

Pt  II,  980.    Statements  made  in  me-  and  may  be  known  as  '  a  knowledge 

morials  to  the  legislature  concerning  of  men  and  tilings.'  The  rule  of  their 

the  meaning  of  statutes  will  not  coh-  jutUcial  reception  is,  that  '  courts  will 

trol  the  court  in  construing  tliem.  not  pretend  to  be  more  ignorant  than 

Ross  V.  Supervisors,  12  Wis.  26.  the  rest  of  mankind.'    Such  matters 

1  Brown  v.  Piper,  91  U.  S.  37.  can  never  be  given  in  evidence  by 
25 


386  INTERPRETATION   AND   CONSTRUCTION. 

In  Board  of  Health  v.  Hill,^  Erie,  C.  J.,  said :  "  Every  one- 
knows  what  the  trade  of  a  brickmaker  is."  And  the  court 
acted  upon  general  knowledge  in  determining  the  character  of 
that  trade  as  to  its  being  a  nuisance.  In  Holman's  Appeal  ^ 
the  court  took  judicial  notice  of  the  long  practical  construction 
of  a  statute,  and  of  the  general  understanding  of  the  profession 
as  to  its  scope  and  meaning.''  It  was  judicially  known  that 
the  tide  ebbs  and  flows  to  a  great  height  in  the  Eiver  Mersey 
in  England.^  In  Jarvis  v.  Eobinson,'^  Dixon,  C.  J.,  said:  "We 
all  know  that  the  circuit  courts  of  the  several  states  are  courts 
of  general  jurisdiction,  as  well  as  w^e  know  that  courts  of  jus- 
tices of  the  peace  are  not ;  and  why  should  judges  assume  a 
degree  of  ignorance  on  the  bench  which  would  be  unpardon- 
able in  them  when  off  of  it."  Superior  courts  know  when  it 
has  been  the  immemorial  practice  of  an  inferior  court  of  record 
consisting  of  several  members  to  recognize  one  practically  as 
a  quorum.  Thus  an  act  provided  that  it  should  be  lawful  for 
the  judges  of  the  central  criminal  court,  "  or  any  two  or  more 
of  them,  to  inquire  of,  hear,  determine  and  adjudge  the  of- 
fenses specified."  It  was  ruled  that  one  could  hold  the  court. 
"From  the  earliest  period,"  said  Cockburn,  C.  J.,  "commis- 
sions of  oyer  and  terminer  have  been  framed  in  the  same  terms 
as  are  employed  in  the  statute  in  question.  In  these  commis- 
sions a  certain  specified  number  of  the  persons,  some  of  whom, 
are  named,  are  always  constituted  a  quorum.  Yet  for  cen- 
turies the  trials  of  offenses  under  such  commissions  upon  the 
circuits  of  the  judges  have  been  held  before  a  single  judge, 
and  the  proceedings  are  nevertheless  represented  on  the  record 
as  taking  place  not  before  one  judge,  but  before  the  other 
judges  sitting  under  the  commission."  ^ 

§  302.  A  court  will  take  judicial  notice  of  the  seasons  and 
of  the  general  course  of  agriculture,  so  as  to  know  whether 
at  a  particular  date  the  crops  of  the  country  would  be  ma- 
means  of  any  spoken  or  wi'itten  Ian-  Co.  18  N.  J.  Eq.  13 ;  Scruggs  t. 
guage,  and  hence  tliey  can  leave  no  Brackin,  4  Yerg.  538 ;  Egnew  v.  Coch- 
impression  upon  the  record  of  a  rane,  2  Head,  320. 
cause."  ^wiiitney  v.  Gauche,  11  La,  Ann. 

1 13  C.  B.  (N.  S.)  at  p.  483.  432. 

2 106  Pa.  St  502.  5  oj  wis.  at  p.  526. 

3Keyport  St  Co.  v.  Transportation        ei^everson  v.  Eeg.  L.  R  4  Q.  B.  394 


INTEKPEETATION    AND    CONSTKUCTION.  387 

tured  so  as  to  be  severed.^  An  agreement  required  a  cropper 
to  deliver  to  liis  landlord  the  "  small  grain  in  the  half  bushel 
as  soon  as  threshed ;  "  and  it  was  argued  that,  as  there  was  no 
time  specified  when  it  should  be  threslied,  the  law  would  hold 
that  it  should  be  threshed  and  delivered  within  a  reasonable 
time ;  that  the  court  Avill  judicially  take  notice  of  the  time 
when  such  crops  matured,  on  the  priuci[)le  that  Avhatever 
ought  to  be  generally  known  within  the  limits  of  its  jurisdic- 
tion, of  that  the  court  will  judicially  take  notice.  The  court 
answered :  We  do  not  think  the  doctrine  of  judicial  notice 
has  been  carried  quite  to  "  this  extent."  The  time  when  wheat, 
oats  and  barley  matured  was  stated  by  the  court  to  vary  in 
different  parts  of  the  state,  and  even  in  the  same  locality. 
"  Of  facts  of  unvarying  occurrence,"  say  the  court,  "  courts 
must  take  judicial  notice,  but  not  of  the  vicissitudes  of  climate 
or  the  seasons."  ^  The  court  will  take  notice  of  the  course  of 
the  seasons  and  of  husbandry,  and  that  the  use  of  a  farm  for 
six  months  during  the  cropping  season  would  be  worth  much 
more  per  acre  than  it  would  be  during  the  six  months  includ- 
ing the  winter  season.^  A  court  will  take  notice  from  the 
time  of  a  father's  death  whether  at  a  particular  date  his  chil- 
dren had  arrived  at  majority.*  It  is  on  the  same  principle  that 
mortuary  tables  are  acted  upon  as  embodjdng  the  results  of 
general  observation.'^  Courts  will  take  judicial  notice  of  the 
calendar  and  on  what  day  of  tlie  week  a  given  day  of  the 
month  falls ;"  the  time  when  the  sun  rises  at  given  times.'' 

§  303.  The  fact  that  "  brandy  is  ranked  as  an  intoxicating 
liquor  by  writers  upon  the  general  subject,  and  that  it  is  a 
liquor  of  that  character  is  generally  and  commonly  known, 
is  one  of  which  the  courts  will  take  judicial  knowledge."* 
Everybody  knows  Avhat  gin  is ;  knows  not  only  that  it  is  a 

1  Floyd  V.  Ricks,  14  Ark.  286 ;  Tom-  6  Allman    v.  Owen,   31    Ala.   167 ; 

linsou  V.  Greenfield,  31  id  557 ;  Case  Sprowl  v.  Lawrence,  33  id.  G7-4 ;  Pliil- 

V.  Serew,  46  Hun,  57.  adelpliia,  etc.  R.  R.  Co.  t.  Lehman,  56 

•-'  Dixon  T.  Niccolls.  39  lU.  372.     See  Md.  209 ;  Mcintosh  v.  Lee.  57  Iowa, 

Moulton  V.  Posten,  53  Wis.  169,  173.  356 ;  Curtis  v.  Mai'ch,  4  Jm-.  (N.  S.) 

■^  Ross  V.  Boswcll,  60  Ind.  235.  1112. 

^  Floyd  V.  Johnson,  2  Litt  109.  7  People  v.  Chee  Kee,  61  Cal.  404. 

■^Goodon  V.  Tweedy,  74  Ala.  232.  spenton  v.  State,  100  Ind.  598. 


388  INTEEPKETATIOX   AXD    CONSTEUCTIOi^. 

liquor,  but  also  that  it  is  intoxicating.'  The  same  is  held  in 
regard  to  whisky.'-'  So  a  court  will  take  judicial  notice  that 
"  lager  beer,"  commonly  used  as  a  beverage,  is  a  malt  and  an 
intoxicating  liquor.^  That  coal  oil  is  inflammable.*  Courts 
judicially  know  of  the  navigability  of  such  streams  as  the 
Mississippi  river ;  they  know  this  because  they  form  part  of 
the  geograph}^  of  the  country,  and  their  navigability  is  known 
as  forming  part  of  the  common  public  history ;  *  they  know 
that  a  "  gift  enterprise "  in  common  parlance  is  understood 
to  be  substantially  a  scheme  for  the  division  or  distribution 
of  certain  articles  of  property,  to  be  determined  by  chance, 
amongst  those  who  have  taken  shares  in  it.^ 

§  304.  Courts  will  take  notice  of  whatever  is  generally 
known  within  the  limits  of  their  jurisdiction.  A  patent  was 
held  void  on  its  face  for  want  of  novelty.^  To  require  proof  of 
every  fact,  as  that  Calais  is  beyond  the  jurisdiction  of  the 
courts  of  England,  would  be  utterly  and  absolutely  absurd.® 
In  a  libel  case  in  which  the  libel  was  that  the  friends  of  the 
plaintiff  had  "  realized  the  fable  of  the  frozen  snake,"  the  court 
took  judicial  notice  that  the  knowledge  of  that  fable  existed 
generally  in  society.^  Conventional  expressions  conveying  a 
particular  idea  may  become  so  current  that  a  court  would  take 
judicial  notice  of  their  popular  meaning.  In  an  action  by  a 
clergyman  for  libel,  the  court  took  judicial  notice  of  the  mean- 
ing of  the  words :  "  Then  there  was  that  Iowa  Beecher  busi- 
ness which  beat  him  out  of  a  station  at  Grass  Lake."  ^" 

§  305.  The  courts  will  judicially  notice  the  art  of  photog- 
raphy, the  mechanical  and  chemical  processes  employed,  the 
scientific  principles  on  which  they  are  based,  and  their  results.'^ 
But  it  has  been  held  that  courts  will  not  take  judicial  notice 
of  philosophic  or  scientific  facts  and  principles  which  are  not 

1  Commonwealth    v.    Peckham,  2        *  State  v  Hayes,  78  Mo.  307. 
Gray,  514  s  Neaderhouser  v.  State,  28  Ind.  257 ; 

2  Carmon    v.   State,    18  IncL    450 ;  Siegbert  v.  Stiles,  39  Wis.  533. 
Eagan  v.  State,  53  Ind  162 ;  Sclxliclit       «  Lohman  v.  State,  81  Ind  15. 
V.  State,  56  id  173.  7  Brown  v.  Piper,  91  U.  S.  37. 

3  Watson    V.    State,   55    Ala.   158;        8  Qres.  Eq.  Ev.  294. 

State  V.  Goyette,  11  R.  I.  592 ;  Briffitt        9  Hoare  v,  SUverlock,  12  Q.  B.  624 
V.   State,    58  Wis.    39;    Kerkow   v.       lo  Bailey  v.  Kalamazoo  Pub.  Co.  40 

Bauer,  15  Neb.  150 ;  Killip  v.  McKay,  Mich.  251. 
13  N.  Y.  St  P.ep.  5.  n  Luke  v.  CaUioun  Co.  52  Ala.  115. 


INTERPRETATION    AND    CONSTRUCTION. 


389 


generally  known.'  Facts  stated  even  in  standard  publications, 
such  as  encyclopedias  and  dictionaries,  will  not  be  judicially 
noticed  unless  they  are  of  such  universal  notoriety  as  to  be  a 
part  of  the  common  knowledge  of  all  persons.-  Courts  cannot 
take  notice  of  minor  geographical  and  other  hke  facts,  unless 
historically  or  traditionally  well  and  generally  known.' 

§  30G.  Courts  will  take  judicial  notice  that  the  business  of  a 
barber  on  Sunday  is  not  a  work  of  necessity ;  '*  the  peculiar 
nature  of  lotteries  and  how  they  are  generally  managed;' 
what  a  billiard  table  is."  They  will  take  notice  of  the  charac- 
ter of  the  cu'culating  medium,  and  the  meaning  of  popular 
language  relating  to  it;^  the  different  classes  of  notes  and 
bills  in  circulation  as  money  at  a  particular  time ;  *  the  gen- 
right  of  property  connected  with  the 
continuance  of  Ufe,  facts  so  far  as 
they  are  known,  in  regard  to  the  prob- 
ability, the  expectation,  and  the  aver- 
age duration  of  human  hfe,  have  al- 
ways been  in  hke  manner  admitted  as 
evidence,  or  as  a  gi-ound  from  which 
presumptive  evidence  of  the  existence 
of  other  facts  may  be  fairly  deduced. 
And  there  can  be  no  doubt  that  the 
regular  and  known  coirrse  of  nature 
in  the  formation  of  vegetables  may 
be  as  safely  rehed  on  as  direct,  or  as 
presumptive  evidence,  as  in  that  of 
animals.  The  only  point  of  cUfticulty 
as  to  both  being  the  establishment  of 
the  ti-uth  of  that  wliich  is  alleged  to 
be  the  uniform  and  regular  coiu^e  of 
nature."  But  it  was  held  that,  in  the 
absence  of  evidence  that  the  number 
of  concenti'ic  layers  in  the  trimk  of  a 
tree  correspond  with  the  years  of  its 
age,  the  hypothesis  that  the  formation 
of  each  one  of  such  concentric  layers 
is  evidence  of  the  lapse  of  a  year  can- 
not be  judicially  received. 

■»  State  V.  Frederick,  45  Ark.  347. 
^  Salomon  v.  State,  28  Ala.  83. 
estate  V.  Price,  12  G.  &  J.  2C0. 
"  Lampton    v.    Haggai-d,    3  T.    R 
]\Ion.  149. 
8  Hart  V.  State,  55  Ind,  599. 


1  Ausman  v.  Veal,  10  Ind.  355 ;  St 
Louis  G.  L.  Co.  V.  American  F.  Ins. 
Co.  33  Mo.  App.  348.  See  Spensley  v. 
Lancasliire  Ins.  Co.  54  "Wis.  433. 

2  Kaolatype  Engi'aving  Co.  v.  Hoke, 
30  Fed.  Rep.  444. 

3  Buifalo,  etc.  Co.  v.  N.  Y.  etc.  R.  R. 
Co.  10  Abb.  N.  C.  107.  Chan.  Bland 
in  Patterson  v.  McCausland,  3  Bland's 
Ch.  at  p.  71,  said :  "  The  law  respects 
the  regular  course  of  nature  in  eveiy 
way ;  and,  consequently,  in  all  cases 
in  so  far  as  the  coiu'se  of  nature  is 
known,  aU  such  facts,  as  well  in  re- 
gard to  the  revolution  of  the  seasons, 
as  to  animals  and  vegetables ;  as  to 
the  mating  of  bii'ds,  and  theu"  co- 
operation in  rearing  their  young,  the 
blooming  time  of  roses,  and  the  hke, 
are  received  as  being  in  themselves 
entirely  ti-ustworthy,  or  as  facts  from 
which  inferences  as  to  the  truth  of 
other  facts  may  be  safely  di-awn.  Co. 
Litt.  40,  92,  197;  1  Stark.  Ev.  472, 
note;  Case  of  Swans,  7  Co.  82.  lu 
questions  of  bastardy,  the  time  of 
access  being  proved,  the  kno^\^l  term 
of  gestation,  reckouuig  from  the  time 
of  birth,  is  always  received  as  a  most 
satisfactory  kind  of  presumptive  evi- 
dence, Co.  Litt.  1236,  note;  Rex  v. 
Luffe,  ^  East,  193.  So  too,  in  all  the 
varioiis  questions  in  relation  to  the 


390 


INTEKPEETATIOX   AND   CONSTRUCTION. 


eral  facts  connected  with  the  emission,  use  and  circulation  of 
the  Confederate  currency ;  ^  the  changes  in  the  course  of  business 
in  the  country  and  of  new  processes  to  facilitate  trade  ^  and 
communication ;  *  that  a  railroad  superintendent  has  authority 
to  receive  or  refuse  cord-wood ;  *  the  customary  price  of  ordinary 
labor ;  ^  the  meaning  of  common  and  generally  known  abbrevia- 
tions of  proper  names  and  of  other  things ;  *  that  Free  Masonry 
is  a  charitable  institution ;  ^  of  the  usual  duration  of  a  voyage 
across  the  Atlantic ;  ^  the  ordinary  incidents  of  railway  travel ;  ® 
that  the  language  of  all  countries  is  subject  to  fluctuation;^" 
the  distance  between  well-known  cities  of  the  United  States 
and  the  speed  of  railway  travel  between  them.'^  There  is 
considerable  diversity  of  opinion  in  dealing  with  the  multifari- 
ous facts  for  which  judicial  notice  has  been  claimed,  but  these 
contrarieties  have  arisen  in  the  application  of  conceded  prin- 
ciples, and  when  compared  will  be  found  to  merely  illustrate 
different  degrees  of  caution  and  conservatism.^^ 


1  Simmons  v.  Trumbo,  9  W.  Va, 
358. 

2  Wiggins  Ferry  Co.  v.  Chicago, 
etc.  R.  R.  Co.  5  Mo.  App.  347. 

3  Wisconsin  Telephone  Co.  v.  Osh- 
kosh,  63  Wis.  32. 

*  Sacalaris  v.  Eureka,  etc.  R.  R.  Co. 
18  Nev.  155. 

5  Bell  V,  Barnet,  3  J.  J.  Marsh.  516. 

«Moseley  v.  Mastin,  37  Ala.  216; 
Stephen  v.  State,  11  Ga.  225 ;  Weaver 
V.  McElhenon,  13  Mo.  89. 

1  Bm-dine  v.  Grand  Lodge,  37  Ala. 
478. 

8  Openheim  v.  Wolf,  3  Sandf.  Cli. 
571. 

9  Downey  v.  Hendrie,  46  Mich.  498. 

10  Vanada  v.  Hopkins,  1  J.  J.  Marsh. 
285. 

iiPearce  v.  Langfit,  101  Pa.  St.  507; 
Rice  V.  Montgomery,  4  Biss.  75. 

i'^  Goodwin  v.  Appleton,  22  Me.  453 ; 
Penn.  Co.  v.  Frana,  13  IlL  App.  91 ; 
•Johnson  v.  Common  Council,  16 
[nd.  227 ;  Buckinghouse  v.  Gregg,  19 
id.  401 ;  Porter  v.  Waring,  69  N.  Y. 
250 ;  AUen  v.  Scliai-inghausen,  8  Mo. 
Apjj.  229 ;  Rice  v.  Montgomery,  4  Biss. 


75 ;  State  v.  Russell,  17  Mo.  App.  16 ; 
Wilcox  V.  Jackson,  109  111.  261; 
Bishop  V.  Jones,  28  Tex.  294 ;  Brad- 
ford V.  Floyd,  80  Mo.  207 ;  State  v. 
Wise,  7  Ind.  645 ;  Ward  v.  Henry,  19 
Wis.  76 ;  State  v.  Bruner,  17  Mo.  App. 
274;  Stanberry  v.  Nelson,  Wright 
(Ohio),  766 ;  Mosley  v.  Vt.  Mut.  F.  Ins. 
Co.  55  Vt.  142 ;  EUis  v.  Park,  8  Tex. 
205;  RusseU  v.  Martin,  15  id.  238; 
Seymoiu'  v.  Marvin,  11  Barb.  80; 
Modawell  v.  Hohues,  40  Ala.  391 ;  Cic- 
ero, etc.  Co.  V.  Craighead,  28  Ind.  274 ; 
Riggin  V.  Collier,  6  Mo.  5G8 ;  "WTiitlock 
V.  Casti-o,  22  Tex.  108 ;  Woodward  v. 
Chicago,  etc.  R.  R.  Co.  21  Wis.  309 ; 
Longes  v.  Kennedy,  2  Bibb,  607 ; 
McDonald  v.  Kirby,  3  Heisk.  607; 
Cutter  V.  Caruthers,  48  Cal.  178 ;  State 
V.  Cleveland,  80  Mo.  108;  Market 
Bank  v.  Pacific  Bank,  27  Hun,  465 ; 
Johnson  v.  Robertson,  31  Md.  476; 
Grider  v.  TaUy,  77  Ala.  422 ;  KeUey  v. 
Story,  6  Heisk.  202 ;  Temple  v.  State, 
15  Tex.  App.  304;  Bennett  v.  North 
British  Ins.  Co.  8  Dah',  471 ;  Feemster 
V.  Ringo,  5  T.  B.  Mon.  336 ;  South  &  N. 
A.  R.  R.  Co.  V.  Wood,  74  Ala,  449; 


INTERPRETATION   AND   CONSTRUCTION.  bdl 

§  307.  Conteniporaneoiis  construction. — The  aid  of  contem- 
poraneous construction  is  invoked  where  the  language  of  a 
statute  is  of  doubtful  import  and  cannot  be  made  plain  by  the 
help  of  any  other  part  of  the  same  statute,  nor  by  the  assist- 
ance of  any  act  in  pari  materia  which  may  be  read  with  it, 
nor  of  the  course  of  the  common  law  up  to  the  time  of  its  en- 
actment. Under  such  circumstances  the  court  may  consider 
what  was  the  construction  put  upon  the  act  when  it  first  came 
into  operation.^  Where  this  has  been  given  by  enactment  it 
is  3onclusive.^  A  contemporaneous  construction  is  that  which 
i  ■.  i  eceives  soon  after  its  enactment.  This  after  the  lapse  of 
time,  without  change  of  that  construction  by  legislation  or 
judicial  decision,  has  been  declared  to  be  generally  the  best 
construction.  It  gives  the  sense  of  the  community  as  to  the 
terms  made  use  of  by  the  legislature.  If  there  is  ambiguity 
in  the  language,  the  understanding  of  the  appHcation  of  it 
when  the  statute  first  goes  into  operation,  sanctioned  by 
long  acquiescence  on  the  part  of  the  legislature  and  judicial 
tribunals,  is  the  strongest  evidence  that  it  has  been  rightly  ex- 
plained in  practice.  A  construction  under  such  circumstances 
becomes  established  law.*  Where  the  statute  is  doubtful,  a 
construction  long  acted  upon  by  the  inferior  courts  Avill  gen- 
erally be  adopted  and  followed  by  the  superior  tribunals,^  and 

Esterbrook  IVIfg.  Co.  v.  Ahem,  30  Vaiighan,  169 ;  Mansell  v.  Reg.  8  E.  & 
N.  J.  Eq.  341 ;  Slii-opsliire  v.  State,  13  B.  at  p.  Ill ;  Gorham  v.  Bishop  of  Ex- 
Ark.  1 90.  eter,  15  Q.  B.  69 ;  Booth  v.  Ibbotson,  1 Y. 

1  WUb.  on  St.  142 ;  2  Inst.  11,  136 ;  1  &  J.  360 ;  Nelson  v.  AUen,  1  Yeig.  360, 
Kent,  Com.  465 ;  Fermoy  Peerage  376,  377 ;  Hari-ison  v.  AVillis,  7  Heisk. 
Claim,  5  H.  L.  Cas.  at  p.  747 ;  Mor-  35 ;  Simpson  v,  Willard,  14  S.  C.  191 ; 
gan  V.  Crawshay,  L.  R.  5  H.  L.  at  Martin  v.  Hvmter,  1  Wheat  351 ; 
p.  315 ;  Attorney-General  V,  Primate,  1  Wanet  v.  Corbet,  13  Ga  441 ;  Howell 
Jebb.  &  Synies,  at  p.  317.  v.  State,  71  id.  224 ;  State  v.  Mayhew, 

2  Philadelpliia  &  Erie  R.  R.  Co.  v.  2  Gill,  487;  Garland  v.  Carlisle^  2  Cr. 
Cata^\^ssa  R.  R.  Co.  53  Pa,  St  20,  61.  &  M.  at  p.  39 ;  United  States  v.  Ship 

» Packard  v.  Richardson,  17  Mass.  Recorder,  1  Blatclif.  218,  223;  Wind- 

143 ;  2  Inst  181 ;  People  v.  Loewenthal,  ham  v.  Chetvvynd,  1  Burr,  at  p.  419 ; 

93  111.  191;  Opinion  of  Justices,  126  Wilton  v.  Chambei-s,  7  Ad.  &  EL  at 

Mass.  551 ;  Halm  v.  United   States,  p.  532 ;  Bank  of  England  v.  Anderson, 

107    U.   S.   402;    Commonwealth  v.  3  Bing.  N.  C.  660;  Hamilton  v.  McNeil, 

Parker,  2  Pick.  550,  556 ;   Scruggs  v.  13  Gratt  394 ;  4  Bac.  Abr.  648 ;  Dean 

Brackiu,   4    Yerg.   528 ;    Egnew    v.  v.  Borchseuius,  30  Wis.  236 ;  People  v. 

Cochrane,  2  Head,  320 ;  Cohens  v.  Vir-  ]\Iay.  3  :Mich.  598. 
ginia,  6  Wheat   264 ;   Reg.  v.  Frost        *  Plummer  v.   Plummer,   37   Miea. 

9  C.  &  P.  129 ;  Sheppaid  v.  Gosnold,  185. 


393  INTEKPEETATION   AND   CONSTRUCTION. 

especially  as  to  rights  which  have  accrued  under  it.^  If  the  de- 
cisions are  conflicting  it  cannot  be  said  there  is  a  contemporary 
exposition,  and  the  court  must  look  to  the  words  of  the  statute 
and  interpret  them  by  its  own  unfettered  judgment.^  A  con- 
struction of  a  constitution,  if  nearly  contemporaneous  with  its 
adoption,  and  followed  and  acquiesced  in  for  a  long  period  of 
years  afterwards,  is  never  to  be  Hghtly  disregarded,  and  is 
often  conclusive.* 

§  308.  General  usage. —  If  the  words  of  a  statute  be  doubt- 
ful a  general  usage  may  explain  it,  but  it  must  be  universal.* 
A  practice  in  a  part  of  the  state  inconsistent  with  the  letter 
and  spirit  of  a  statute  cannot  repeal  it  nor  control  its  con- 
struction.5  A  universal  law  cannot  receive  different  interpre- 
tations in  different  localities ;  ^  but  when  a  statute  is  apphcable 
to  one  place  only,  doubtful  words  in  it  may  be  construed  by 
the  usage  in  that  place.''  Long  usage  is  of  no  avail  against  a 
plain  statute ;  ^  it  can  be  binding  only  as  the  interpreter  of 
a  doubtful  law,  and  as  affording  a  contemporary  exposition.* 
Where  a  statute,  expressive  as  to  some  points,  is  silent  as  to 
others,  usage  may  supply  the  defect,  if  not  inconsistent  with 
anything  which  it  expresses.'" 

§  309.  A  practical  construction,  of  long  standing,  by  those 
for  whom  the  law  was  enacted,  will  not  be  lightly  questioned, 
especially  in  matters  of  form,  though  it  will  not  be  allowed  to 
defeat  the  manifest  purpose  of  the  statute.^'     This  was  held  to 

1  Plummer  v.  Pliimmer,  37  Miss.  Bank  of  Ireland  v.  Evans's  Charities, 
185.  5  H.  L.  Cas.  405 ;  Bailey  v.  Rolfe,  16 

2  Rex.  V.  Leek  Wootton,  16  East,  at  N.  H.  247 ;  Chesnut  v.  Shane,  16  Ohio, 
p.  122.  599. 

3  Opinion  of  Justices,  126  Mass.  551 ;  ^  State  v.  Mayhew,  2  Gill,  487. 

1  Kent's  Com.  465  and  note ;   Story  «  St.  Panll  v.  Lewis,  4  Watts,  402 ; 

on  Const.  §  408 ;   Cooley,  Const.  Lim.  Ham  v.  Sawyer,  38  Me.  37 ;  Evans  v. 

69 ;  Surgett  v.  Lapice,  8  How.  48,  68 ;  Myers,  25  Pa.  St.  114. 

Commonwealth    v.    Lockwood,    109  '  Frazier  v.  Warfield,  13  Md.  279. 

Mass.    322,    339;   Commonwealth  v.  « Goldsborough   v.  United   States,- 

Costley,  118   Mass.  1,   36;   Stuart  v.  Taney's  Dec.  80. 

Laird,  1  Cranch,   299 ;   McCulloch  v.  » Att'y-Gen'l  v.  Bank,  5  Ired.  Eq. 

Maryland,  4  Wheat.  316, 401;  Portland  71;   Gwyn  v.  Hardwicke,  1  H.  &  N. 

Bank  v.  Apthoi-p,  12  Mass.  252,  257 ;  53 ;  Pochin  v.  Buncombe,  1  H.  &  N. 

Holmes  v.  Hunt,  122  Mass.  505,  516,  856. 

*  Rex  V.  Hogg,  1  T.  R.  721 ;  Dyer  v.  '» Dunbar  v.  Roxburghe,  3  CI.  &  Fiiu 

Best,  L.  R.  1  Ex.  152 ;  Earl  of  Water-  335. 

ford's  Peerage,  6  CL  &  Fin.  at  p.  173 ;  "  Westbrook  v.  Miller,  56  Mich.  14a. 


INTERPRETATIOX    AND    CONSTRUCTION.  393 

aid  the  presumption  tliat  the  principal  was  under  disability 
when  a  dejjuty  officer  acts,  having  authority  to  act  only  when 
the  principal  is  unable  to  act.^  The  practical  construction 
given  by  the  interior  department  of  the  general  government, 
in  reliance  upon  the  uniform  opinions  of  the  attorney-general's 
office,  of  a  statute  granting  lands,  should  be  followed  by  the 
state  authorities  until  reversed  by  the  federal  courts.^  Where 
a  statute  concerning  the  administration  of  tax-collectors' 
oaths  has  been  uniformly  construed  in  a  certain  way  by  the 
state  and  county  authorities,  and  the  construction  has  become 
a  rule  of  property,  many  titles  depending  upon  it,  the  maxim 
communis  error  facit  jus  may  be  invoked  if  the  statute  is 
doubtful.^  The  practical  construction  given  to  a  doubtful 
statute  by  the  public  officers  of  the  state,  and  acted  upon  by 
the  people  thereof,  is  to  be  considered ;  it  is,  perhaps,  decisive 
in  case  of  doubt.*  This  is  similar  in  effect  to  a  course  of  judi- 
cial decisions.  The  legislature  is  presumed  to  be  cognizant  of 
such  construction,  and  after  long  continuance,  without  any 
legislation  evincing  its  dissent,  courts  will  consider  themselves 
warranted  in  adopting  that  construction.^  Contemporary  con- 
struction, and  official  usage  for  a  long  period,  by  the  persons 
charged  with  the  administration  of  the  law,  are  among  the 
legitimate  aids  in  the  interpretation  of  statutes,^ 

§  310.  When  a  judicial  interpretation  has  once  been  put  upon 
a  clause,  expressed  in  a  vague  manner  by  the  legislature,  and 
difficult  to  be  understood,  that  ought  of  itself  to  be  a  suffi- 

1  Continental  Imp.  Co.  v.  Phelps,  47  Lytle,  5  McLean,  9 ;  Hahn  v.  United 
Midi.  299 ;  Clark  v.  IMowyer,  5  id.  463 ;  States,  14  Ct  CL  305 ;  Swift  Court- 
Cameron  V.  IMerchants',  etc.  Bank,  37  ney,  etc.  Co.  v.  United  States,  14  Ct 
id.  240 ;  Employers'  L.  Co.  v.  Com-  CI.  481 ;  Edwards  v.  Darby,  13  Wheat 
missioner  of  Ins.  64  id.  614.  206 ;  Stuart  v.  Laird,  1  Cranch,  299 

2  Johnson  v.  BaUou,  28  IMich.  379.  United  States  v.  Bank,  6  Pet  29 

3  Malonny  v.  Mahar,  1  IMicli.  26.  United  States  v.  Moore,  95  U.  S.  760 

4  Solomon  v.  Com'rs,  41  Ga,  157;  Brown  v.  United  States,  113  U.  S. 
People  V.  May,  3  IVIich.  598 ;  Kiersted  568 ;  The  Laura,  114  U.  S.  411 ;  Wright 
V.  State,  1  G.  &  J.  231 ;  United  States  v.  Forrestal,  65  Wis.  341,  348. 

V.  Gilmore,  8  Wall.  330 ;  Union  Ins.  &  The  Anna,  L.  R  1  P.  Div.  259. 

Co.  V.  Hoge,  21  How.  35;  Mathews  eWetmore  v.   State,  55  Ala.  198; 

V.  Shores,    24    IlL    27 ;    Chesnut    v.  Nelson  v.  Allen,  1  Yerg.  376 ;  Tipton 

Sh:me,  16  Ohio,  599,  607 ;  Scaulan  v.  v.   Davis,  5  Hay  w.   278 ;    People  v. 

Childs,  33  Wis.  663 ;  Goddard  v.  Glon-  Dayton,  55  N.  Y.  377. 
inger,  5  Watts,  209 ;  United  States  v. 


39i  IXTERPEETATION   AST)    CONSTKUCTIOJ^". 

cient  autliority  for  adopting  the  same  construction.^  Boi- 
ler, J.,  said:  "We  find  one  solemn  determination  of  these 
doubtful  expressions  in  the  statute,  and  as  that  construction 
has  since  prevailed,  there  is  no  reason  why  we  should  now  put 
another  construction  on  the  act  on  account  of  any  supposed 
change  of  convenience."  ^  This  rule  of  construction  wiU  hold 
good  even  if  the  court  be  of  opinion  that  the  practical  construc- 
tion is  erroneous ;  so  that  if  the  matter  were  res  integra  the 
court  would  adopt  a  different  construction.*  Lord  Cairns  said : 
"  I  think  that  with  regard  to  statutes  .  .  ,  it  is  desirable 
not  so  much  that  the  principle  of  the  decision  should  be  capa- 
ble at  all  times  of  justification,  as  that  the  law  should  be  set- 
tled, and  should,  when  once  settled,  be  maintained  without 
any  danger  of  vacillation  or  uncertainty."  *  Judicial  usage 
and  practice  will  have  weight,^  and  when  continued  for  a  long 
time  will  be  sustained  though  carried  beyond  the  fair  purport 
of  the  statute." 

§  311.  The  uniform  legislative  interpretation  of  doubtful 
constitutional  provisions,  running  through  many  years,  and 
a  similar  construction  of  statutes,  has  great  weight.'  The 
contemporary  and  subsequent  action  of  the  legislature  in  ref- 
erence to  the  subject-matter  has  been  accepted  as  control- 

1  "Williams  v.  Newton,  14  M.  &  W.  Morrison  v.  Barksdale,  Harper,  101 ; 
at  p.  757.  Att'y-Gen'l  v.  Bank  of  Cape  Fear,  o 

2  Rex  V.  Younger,  5  T.  R  at  p.  452.  Ired.  Eq.  71 ;  Rogers  v.  Goodwin,  3 
See  Ellis  v.  Owens,  10  M.  &  W.  at  Mass.  475 ;  Wetmore  v.  State,  55  Ala. 
p.  531 ;  Rex  v.  Great  Driffield  In-  198 ;  Plummer  v.  Pkmimer,  37  Miss, 
habitants,  8  B.  &  C.  at  p.  690.  185 ;  Kernion  v.   Hills,   1   La.  Ann. 

3  State  V.  Chase,  5  H.  &  J.  303.  419 ;  Leigh  v.  Kent,  3  T.  R.  at  p.  364. 

4  Commissioners  v.  Harrison,  L.  R.  ^  Pease  v.  Peck,  18  How.  595 ;  Reg. 
7  H.  L.  9 ;  McKeen  v.  Delancy,  5  v.  Scaife,  17  Q.  B.  238 ;  Smith  v.  TiU^-, 
€ranch,  22 ;  Migneault  v.  Malo,  L.  R.  1  Keble,  712 ;  Leverson  v.  Reg.  L.  R.  4 
4  P.  C.  130 ;  Kernion  v.  HiUs,  1  La.  Q.  B.  394 ;  Clow  v.  Harper,  L.  R.  3  Ex. 
Ann.  419:  Janvrin  v.  De  la  Mare,  14  Div.  198;  The  Anna,  L.  R.  1  P.  Div. 
Moore's  P.  C.  334 ;  Kitchen  v.  Bartsch,  259 ;  Reg.  v.  Cutbush,  L.  R.  2  Q.  B.  379 ; 
7  East,  53 ;  Lord  Avocate  v.  Sinclair,  Migneault  v.  Malo,  L.  R.  4  P.  C.  123. 
L.  R.  1  Scotch  App.  178 ;  Jewison  v.  136. 

Dyson,  9  M.  &  W.  540 ;  Nicol  v.  Paul,  ^  Hardy,  Ex    parte,  68    Ala.   303 ; 

L.  R  1  Scotch  App.  131 ;  Evanturel  v.  Attorney-General  v.  Preston,  56  ]VIich. 

Evanturel,  L.  R  2  P.  C.  463.  181;     Commonwealth    v.    Miller,    5 

5  McKeen  v.  Delancy,  5  Cranch,  22 ;  Dana,  330 ;  Moog  v.  Randolph,  77 
Bailey  v.  Rolfe,  16  N.  H.  247 ;  Pack-  Ala.  597 ;  Selma,  etc.  R  R  Co.,  Ex 
ard  V.  Richardson,  17  Mass.  133,  144;  parte,  45  id.  696. 


INTEKPRKTATION    AND   CONSTKTJCTION.  *  395 

ling  evidence  of  the  intention  of  a  particular  act.'  Legisla- 
tive construction  of  old  laws  has  no  judicial  force ;  whether 
right  or  wrong  the  courts  must  determine  the  proper  inter- 
pretation from  the  statutes  themselves.'  A  practical  construc- 
tion of  a  statute  of  doubtful  meaning,  long  continued  and 
acquiesced  in,  and  Avhich  has  operated  as  a  rule  of  prop- 
erty, and  under  which  many  important  rights  have  accrued, 
will  seldom  be  disturbed.^  "  We  cannot,"  say  the  court  in  an 
early  case,  "  shake  a  principle  which  has  so  long  and  so  ex- 
tensively prevailed.  If  the  practice  originated  in  error,  yet  the 
error  is  now  so  common  that  it  must  have  the  force  of  law. 
The  legal  ground  on  which  this  provision  [practice]  is  now 
supported  is  that  long-continued  usage  furnishes  a  contempo- 
raneous construction,  which  must  prevail  over  the  mere  tech- 
nical import  of  the  words." "  In  construing  statutes  applicable 
to  public  corporations,  courts  will  attach  no  sUght  weight  to 
the  uniform  practice  under  them,  if  the  practice  has  con- 
tinued for  a  consideralile  length  of  time.^  Municipal  practice 
under  indefinite  provisions  of  a  charter  that  official  terms 
should  expire  on  the  last  day  of  March  was  applied  in  the  con- 
struction of  a  statute  giving  one  appointed  a  two-years'  term.^ 

1  Doggett  V.  AValter,  15  Fla.  355 ;  be  necessary  to  distinguisli  between 
Bigelow  V.  Forrest,  9  Wall.  339.  redemption  by  permission  and  a  right 

2  Drain  Com'r  v.  Baxter,  57  Mich,  to  redeem,  for  the  one  may  be  good 
137.  independent     of     the     other."    He 

3  Rogers  v.  Goodwin,  2  Mass.  477 ;  reached  the  conclusion  that  the 
Stuart  V.  Laird,  1  Cranch,  299 ;  Mat-  owner  may  not  redeem  by  right,  but 
ter  of  the  Will  of  Warfield,  22  Cal.  may  by  permission,  if  not  done  by 
71;  People  V.  Loewen thai,  93  111.  191 ;  collusioru  "  The  evidence  to  show  the 
Brown  v.  State,  5  Colo.  496 ;  Plum-  rmiversality  of  redemptions  by  per- 
mer  v.  Plummei-,  37  Miss.  185;  Nel-  mission  was  properly  received ;  not, 
son  V.  Allen,  1  Yerg.  360 ;  Morgan  v.  as  was  alleged,  to  prove  a  custom  su- 
Crawshay,  L.  R  5  H.  L.  304,  320 ;  perior  to  the  statutes,  but  to  found 
State  V.  Chase,  5  H.  &  J.  303 ;  State  an  interpretation  of  them  on  the 
V.  Severance,  49  Mo.  401.  In  Steiner  basis  of  the  argument  ab  inconven- 
V.  Coxe,  4  Pa.  St.  13,  Gibson,  C.  J.,  ienti.  It  was  evidence  to  the  court, 
had  to  deal  with  the  effect  of  a  re-  not  to  the  juiy." 

demption  from  a  tax  sale  permitted        *  Rogei-s  v.  Goodwin,  2  Mass.  476. 
by    an    officer    after    the    statutory        5  Sherwin  v.  Bugbee,   16  Vt  444 ; 

period  had  elapsed.    It  had  been  per-  State  v.  Severance,  49  Mo.  401 ;  State 

uiitted  in  pursuance  of    a  practice  v.  Cook,  20  Oliio  St  252. 
which  prevailed  "  to  an  almost  im-        •>  French  v.  Cowan,  4    New  Eng. 

limited  extent."    He  said :  "  It  will  Rep.  682 ;  79  Me.  426. 


300  IXTEEPKETATION   AND   COXSTKUCTION. 

§  312.  All  important  consideration  aJQfecting  tlie  weight  of 
contemporary  judicial  construction  is  the  length  of  time  it  has 
continued.  It  is  adopted,  and  derives  great  force  from  being 
adopted,  soon  after  the  enactment  of  the  law.  It  may  be, 
and  is  presumed,  that  the  legislative  sense  of  its  policy,  and 
of  its  true  scope  and  meaning,  permeates  the  judiciary  and 
controls  its  exposition.  Having  received  at  that  time  a  con- 
struction which  is  for  the  time  settled,  accepted,  and  thereafter 
foUowed  or  acted  upon,  it  has  the  sanction  of  the  authority 
appointed  to  expound  the  law,  and  under  circumstances  pecul- 
iarly favorable  for  reaching  just  and  correct  conclusions ;  when 
reached,  they  are,  moreover,  within  the  strongest  reasons  on 
which  is  founded  the  maxim  of  stare  decisis.  Such  a  construc- 
tion is  publicly  given,  and  the  subsequent  silence  of  the  legis- 
lature is  strong  evidence  of  acquiescence,  though  not  conclu- 
sive.^ But  in  respect  to  a  practical  -  construction  and  usage 
not  having  judicial  sanction,  long  duration  is  of  their  very 
essence.  They  are  but  interpreters  of  an  obscure  law,^  and 
to  have  weight  should  prevail  for  a  long  period,  and  their 
observance  be  uniform  and  notorious.  Long  periods  have 
been  mentioned  as  requisite  or  desirable  in  the  English  cases,. 
varying  from  forty  to  five  hundred  years ;  ^  shorter  periods 
in  this  country  suffice.*  This  difference  may  come  from  the 
legislation  in  America  being  comparatively  modern.  A  local' 
or  special  act,  however,  may  be  acted  upon  and  practicaUT 
construed  by  parties  for  whose  purposes  it  was  enacted,  so 
as  to  induce  an  adoption  of  their  construction  without  ref- 
erence to  the  time  occupied  in  such  practical  construction. 
Thus,  where  a  city  pursuant  to  due  authority  passed  an  ordi- 
nance for  the  subscription  of  stock  and  the  issue  of  bonds  in 
aid  of  a  railroad,  and  this  had  been  acted  upon,  the  court  said 
there  had  been  a  contemporary  construction  "  placed  upon  an 
ordinance  by  the  parties  themselves,  and  on  which  they  have 
acted,  and  upon  which  large  and  important  interests  have 

1  State  V.  Bosworth,  13  Vt.  403;  Fin.  at  p.  354 ;  Gorham  v.  Exeter,  15 
Clinton  V.  Englebrecht,  13  Wall.  434 ;  Q.  B.  52,  69 ;  Fermoy  Peerage  Claim, 
Mayor  of  Baltimore  v.  State,  15  Md.     5  H.  L.  Cas.  729,  785. 

376 ;  Ferris  v.  Higley,  20  Wall.  375.  *  Pease  v.  Peck,  18  How.  595 ;  Clark 

2  BaUey  v.  Rolfe,  16  N.  H.  247.  v.  Dotter,  54  Pa.  St  215,  216 ;  United 

3  Mansell  v.  Reg.  8  E.  &  B.  54,  72,  States  v.  Ship  Recorder,  1  Blatchf.. 
Ill ;  Dunbar  v.  Roxburghe,  3  CL  &  218,  223. 


INTEEPEETATION    AND    CONSTRUCTION.  397 

vested.  Altliougli  this  would  not  be  controlling,  if  the  lan- 
guage was  clearly  the  other  way,  yet  in  doubtful  cases  it  is 
entitled  to,  and  should  receive,  weight."  ^  Lord  Eldon,  in  At- 
torney-General V.  Forster,-  said :  "  According  to  Lord  Ilard- 
wicke,  usage  would  interpret  the  deed  against  the  effect  of 
any  exposition  upon  the  mere  terms  of  the  deed  itscK,  if  there 
was  nothing  else  to  resort  to." 

§313.  Stare  decisis. —  The  certainty  and  stability  of  the 
law  are  among  its  chief  excellencies.  By  following  this  legal 
injunction  the  common  law  has  become  a  symmetrical  system ; 
the  same  authoritative  rule  applied  to  statutory  construction 
gives  a  wholesome  precision  to  dubious  generahties,  and  other- 
wise removes  doubts  which  arise  upon  obscure  provisions,  and 
has  a  salutary  tendency  to  give  confidence  to  those  w4io  must 
act  upon  statutes,  but  cannot  settle  their  meaning.  The  rule  of 
stare  decisis  is  the  authority  of  judicial  decisions  as  precedents 
in  subsequent  litigations.  When  a  point  has  been  once  settled 
by  decision,  it  forms  a  precedent  which  is  not  afterwards  to 
be  departed  from.'  Such  precedents  must  from  the  nature  of 
our  legal  system  be  the  same  to  the  science  of  the  law  as  a 
convincing  series  of  experiments  is  to  any  other  branch  of  in- 
ductive philosophy.  They  are,  on  being  promulgated,  imme- 
diately relied  upon,  according  to  their  character,  either  as  con- 
firming an  old  or  forming  a  new  principle  of  action,  which, 
perhaps,  is  at  once  apphed  to  thousands  of  cases.  These  are 
continually  multiplying.  Numerous  and  valuable  rights,  of- 
fensive and  defensive,  may  be  claimed  under  them.  The  court 
almost  always,  in  deciding  any  question,  creates  a  moral  power 
above  itself;  and  when  the  decision  construes  a  statute,  it  is 
-legally  bound  for  certain  purposes  to  follow  it  as  a  decree 
emanating  from  a  paramount  authority,  according  to  its  various 
applications  in  and  out  of  the  immediate  case.^  "  The  doctrine 
is  not  founded  upon  a  mere  rule  of  practice,  changeable  at  the 
pleasure  of  the  courts,  but  upon  the  solid  basis  of  justice,  and 
vitally  and  essentially  affects  the  rights  and  interests  of  de- 
fendants." '  It  is  a  rule  applicable  to  all  questions  of  law, 
whether  declaring  a  principle  of  the  common  law  or  the  con- 

1  State  V.  Severance,  49  Mo.  401.  ^  Bates  v.   Relyea,  23  Wend  340, 

2 10  Ves.  at  p.  338.  341. 

3  Abb.  L.  Die.  497.  '=  Shiekls  v.  Perkins,  2  Bibb,  230. 


398  INTERPKETATION   AND   CONSTKUCTION. 

struction  of  a  statute.  A.  deliberate  decision  on  a  point  of  law 
given  in  a  case  becomes  authority  in  other  like  cases ;  it  is 
then  the  highest  evidence  of  what  the  law  is  applicable  to  the 
subject ;  it  should  be  followed  unless  reversed  by  a  superior 
court  or  changed  by  the  legislature,'  unless  the  law  was  mani- 
festly misunderstood  or  misapplied  in  the  case  decided ;  and 
even  then,  after  long  adherence  to  that  error,  it  may  become 
fixed  and  incapable  of  judicial  correction.  If  it  were  other- 
wise, the  public  would  suffer  great  inconvenience.  It  is  only 
by  the  notoriety  and  stability  of  legal  principles  and  rules  as 
they  are  defined,  declared  and  illustrated  in  judicial  precedents 
that  aU  human  affairs  may  be  regulated  by  one  standard ;  that 
professional  men  can  give  safe  advice  to  those  who  consult 
them ;  that  people  in  general  can  venture  with  confidence  to  buy 
and  trust,  and  to  deal  with  each  other.^ 

§  314.  There  is  a  distinction  in  the  application  of  this  rule 
between  questions  which  concern  practice,  or  those  rules  of 
conduct  which  have  a  mere  present  importance,  and  those 
which  affect  the  validity  and  control  the  construction  of  con- 
tracts, or  are  rules  of  property.  As  to  the  former,  legal  prece- 
dents are  followed  unless  they  are  manifestly  wrong.*  As  to  c  he 
latter,  they  are  followed  with  more  persistency.*  The  hnpor- 
tance,  in  a  general  sense,  of  stable  laws  induces  a  conservati  re 
opposition  to  vacillation  in  even  the  methods  of  administering 
justice,  and  has  made  the  rule  of  stare  decisis  universally  ap- 
plicable ;  in  some  cases  imperative,  in  others  at  least  a  precept. 

1  Lemp  V,  Hastings,  4  Greene  (la.),  283 ;  New  Orleans  v.  Poutz,  14  La, 

448;  Emerson  V.  Atwater,  7  Mich.  23.  Ann.   853;   Romaine  v.  Kinshiner,  2 

^  1  Kent's  Com.  476.  Hilt.  519. 

3  Duff  V.  Fisher,  15  CaL  375,  381 ;  *  i  Kent,  475,  476 ;  27  Am.  Dec.  632 ; 

Commonwealth  v.  Miller,    5    Dana,  In  re  Warfield,  22  CaL  51 ;  Panaud  v. 

320 ;  State  v.  Thompson,  10  La.  Ann.  Jones,  1  id.  488 ;  Rogers  t.  Goodwm,  2 

122 ;  Reg.  v.  Chantrell,  L  R.  10  Q.  B,  Mass.  477 ;  Aicard  v.  Daly,  7  La.  iinn. 

587 ;  Waldo  v.  Bell,  13  La.  Ann.  329 ;  612 ;  Farmer's  Hens  v.  Fletcher,  \x  id. 

Davidson  v.  AUen,  36  Miss.  419 ;  State  142 ;  Van  Loon  v.  Lyon,  4  Daly,  a49  ; 

V.  WapeUo  Co.  13  Iowa,  388 ;  Green  v.  Day  v.  Munson,  14  Oliio  St  488 ;  Aeed 

Neal,  6  Pet.  291 ;  Sydnor  v.  Gascoigne,  v.  Ownby,  44  Mo.  204 ;  Hilm  v.  Courtis, 

11  Tex.  455 ;  Borden  v.  State,  11  Ark.  31  Cal.  402 ;  Meriam  v.  Harsen,  2  Barb. 

519;  Greencastle  Southern  T.  Co.  v.  Ch.  270;  Pioche  v.  Paul,  22  CaL  110; 

State,   28    Ind.    382 ;    Succession    of  Fisher  v.  Horicon  I.  Co.  10  Wis.  355 ; 

Lauve,  6  La.  Ann.  529 ;  Seale  v.  Mitch-  Van  Winkle  v.  Constantine,  10  N.  Y. 

ell,  5  CaL  403 ;  Wolf  v,  Lowry,  10  La.  425. 
Ann.  272 ;  People  v.  Cicott,  16  Midi. 


INTERPRET AllOX   AND    CONSTRUCTION.  'uJ\) 

"  Wliere  a  question  lias  been  well  considered,"  says  Harris,  J., 
"  and  deliberately  determined,  whatever  might  have  been  the 
views  of  the  court  before  which  the  (juestion  is  agtiin  brought, 
had  it  been  res  nova,  it  is  not  at  hberty  to  disturb  or  unsettle 
such  decision  unless  impelled  by  the  most  cogent  reasons.  '  I 
cannot  legislate,'  said  Lord  Kenyon,  '  but  by  my  industry  I 
can  discover  what  my  predecessors  have  done,  and  I  will  tread 
in  their  footsteps,'  "  ' 

§  315.  Where  a  rule  of  property  has  been  estabhshed  it  is 
deemed  better  to  let  it  stand,  although  subsequent  experience 
may  show  it  to  be  erroneous.  It  can  only  be  changed  by  a 
new  act  without  unsettling  titles.-  The  supreme  court  of 
Irn^  ana  said :  "  There  are  some  questions  in  law,  the  final 
settlement  of  which  is  vastly  more  important  than  how  they  are 
settled ;  and  among  these  are  rules  of  property  long  recognized 
and  acted  upon,  and  under  which  rights  have  vested.  A  decis- 
ion cannot  be  changed  without  producing  confusion  in  titles, 
as  the  ruling  would  necessarily  relate  back  to  the  time  when 
the  law  came  in  force.  If  a  canon  of  descent,  for  instance, 
as  settled  by  the  determination  of  the  court  of  last  resort,  is 
unjust,  or  even  distasteful,  the  legislature  can  change  it  by  a 
new  statute,  without  interfering  with  vested  rights."  ^  It  was 
objected  in  a  case  that  a  judicial  sale  had  been  ordered  on  a 
petition  which  did  not  show  the  jurisdictional  facts.*  But 
upon  the  same  principles  involved  in  the  objection  two  former 
cases  had  decided  in  effect  that  such  omission  was  a  mere 
irregularity ;  it  was  deemed  a  rule  of  property,  and  ought  not 
to  be  disturbed.  The  legislature  had  passed  a  special  act  au- 
thorizing a  guardian  named  to  sell  the  lands  of  his  ward,  and 
the  question  of  the  validity  of  that  sale  was  afterwards 
solemnly  adjudicated  and  sustained.  After  a  period  of  eleven 
years  the  court  said  of  that  decision,  "  every  consideration  of 
policy  admonishes  us,  even  if  we  believed  that  there  was  room 
to  doubt  as  to  the  correctness  of  the  decision  in  that  case,  not 

1  Baker  v.  Lorillard,  4  N.  Y.  261.         St.  13 ;  Boon  v.  Bowers,  30  Jliss.  246 ; 

2  York's  Appeal,  17  W.  N.  C.  33 ;  S.  C.     Seale  v.  Mitchell,  5  Cal.  401. 

110  Pa.  St.  69;   Hering  v.  Chambei-s,        3  Rockhill  \.  Nelson,  24  IndL   422; 
103  Pa.  St  172,  176 ;  Tuttle  v.  Griffin,     Ewiug  v.  Ewing,  id.  470. 
C4  Iowa,  455 ;  Bane  v.  Wick,  6  Ohio        •«  Field's  Heirs  v.  Goldsby,  28  Ala. 

218. 


400  INTEKPEETATION  AJSTD   CONSTEUCTIOIf. 

to  enter  upon  a  review  of  it  nor  to  disturb  it  at  this  late 
day.  All  questions  which  have  an  important  bearing  upon. 
titles  to  property,  and  which  have,  as  in  this  instance,  been  once 
carefuUj"  considered  and  solemnly  settled  by  the  court,  ought 
not  to  be  treated  as  open  for  future  investigation,  unless  it 
shall  appear  that  the  evil  resulting  from  the  principle  estab- 
lished must  be  productive  of  greater  mischief  to  the  community 
than  can  possibly  ensue  from  disregarding  the  previous  adjudi- 
cations upon  the  subject.^ 

§  316.  ISTo  absolute  rule  can  be  given  as  to  when  stare  de- 
cisis is  imperative,  so  much  depends  on  the  particular  case  in 
which  it  may  be  invoked.   For  it  must  be  confessed  that  hasty 
and  ill-considered  decisions  are  sometimes  made,  and  even  of 
such  a  nature  as  to  become  rules  of  property ;  decisions  so  ob- 
viously against  law  that  they  ought,  in  vindication  of  the  law, 
to  be  overruled,  and  in  a  multitude  of  instances  have  been.^ 
When  this  has  occurred,  however,  there  has  been  a  thoughtful 
comparison  of  the  consequences ;  and  when  such  adjudications 
have  been  departed  from,  it  has  been  because  the  benefits  of 
adherence  to  the  law  are  anticipated  to  be  more  than  sufficient 
to  counterbalance  the  hardship  to  those  who  will  be  disap- 
pointed by  annulling  the  aberrant  case  or  cases.^    Courts  are 
not  required,  in  the  exercise  of  their  wide  judicial  discretion, 
to  overturn  principles  which  have  been  considered  and  acted 
upon  as  correct,  and  thereby  disturb  contracts  and  property, 
and  involve  everything  in  inexplicable  confusion,  simply  because 
some  abstract  principle  of  law  has  been  incorrectly  established 
in  the  outset.*    The  maxim  of  stare  decisis  is  one  of  great 
importance  in  the  administration  of  justice,  and  ought  not  to 
be  departed  from  for  slight  or  trivial  causes ;  yet  this  rule  has 
never  been  carried  so  far  as  to  preclude  courts  from  investi- 
gating former  decisions  Avhen  the  question  has  not  undergone 
repeated  examination  and  become  Avell  settled.^ 

§  317.  "  The  two  grounds  of  justification,"  says  ]\Ir.  WeUs, 
"  in  departing  from  even  a  single  decision  which  has  become  a 

1  Boon  V.    Bowers,   30    Miss.    246 ;  Neal,  6  Pet.  291 ;  Hall  v.  Newcomb, 

S.  C.  64  Am.  Dec.  159.  3  Hill,  233 ;  S.  C.  7  id.  416. 

sChesnut  v.  Shane,  16  Ohio,  599;  ^id. ;  Grubbs  v.  State,  24  Ind.  295. 

S.  C.  47  Am.  Dec.  387 ;  Hickman  v.  ^  Welch  v.  SuUivan,  8  CaL  188. 

Gaither,  2  Yerg.  200.    See  Green  v.  5  Bowers  v.  Green,  1  Scam,  42. 


INTEEPRETATIOX    AND    CONSTRUCTION.  401 

general  rule  of  property  within  a  certain  line  of  dealing,  are 
(1)  the  necessity  of  preventing  further  injustice;  (2)  the  neces- 
sity of  vindicating  clear  and  obvious  principles  of  law.  AVhen 
these  do  not  exist,  a  proposition  for  change  cannot  be  enter- 
tained." '  If  infinite  mischief  would  ensue  sliould  the  court, 
in  the  construction  of  a  statute,  adopt  a  different  rule  from 
that  which  has  been  long  established  in  the  state,  it  will  yield 
the  construction  which  it  would  otherwise  put  on  tiie  words 
of  the  statute  to  that  interpretation  which  has  been  univers- 
ally received  and  long  acted  upon.-  This  maxim  has  been 
applied  to  decisions  construing  constitutions  as  well  as  other 
written  laws.  The  following  excerpt  from  a  dissenting  opin- 
ion of  Paine,  J.,  in  a  Wisconsin  case,  explains  very  clearly,  in 
accordance  with  the  general  course  of  authority,  the  considera- 
tions which  weigh  to  induce  a  greater  or  less  persistent  adher- 
ence to  previous  adjudications : 

"  The  following  positions  are  fairly  to  be  derived  from  the 
authorities,  and  are  clearly  supported  by  reason:  That  the 
maxim  stare  decisis  has  greater  or  less  force  according  to 
the  nature  of  the  question  decided ;  that  there  are  many  ques- 
tions upon  which  there  is  no  objection  to  a  change  of  decision 
other  than  grows  out  of  those  general  considerations  which 
favor  certainty  and  stability  in  the  law.  There  are  questions 
where  the  decisions  did  not  constitute  a  business  rule,  and 
"where  a  cliange  would  invalidate  no  business  transactions  con- 
ducted upon  the  faith  of  the  first  adjudication.  As  an  illustra- 
tion take  a  case  involving  personal  liberty :  A  party  restrained 
of  his  liberty  claims  to  be  discharged  under  some  constitu- 
tional provision ;  the  court  erroneously  decides  against  him ;  the 
same  question  arises  again.  To  change  such  a  decision  would 
destroy  no  rights  acquired  in  the  past ;  it  would  only  give 
better  protection  in  the  future.  The  maxim  in  such  a  case 
would  be  entitled  to  but  very  little  Aveight,  and  mere  regard 
for  stability  ought  not  to  be  allowed  to  prevent  a  more  per- 
fect administration  of  justice.  But  where  a  decision  relates  to 
certain  modes  of  doing  business,  which  business  enters  largely 
into  the  daily  transactions  of  the  people  of  a  state,  and  a 

1  Wells  on  stare  Decisis,  §  598.  Cranch,  32 ;  Giblin  v.  Jordan,  6  CaL 

2  Van  Loon  v.  Lyon,  4  Daly,  149;     416. 
JiIcKeen     v.    Delancy's     Lessee,     5 

26 


402  INTEKPRETATION    AND    CONSTKUCTION. 

chano-e  of  decision  must  necessarily  invalidate  everything  done 
in  the  mode  prescribed  by  the  first,  then,  when  a  decision  has 
been  once  made  and  acted  on  for  any  considerable  length  of 
tune,  the  maxim  becomes  imperative,  and  no  court  is  at  hberty 
to  change.    Take  a  case  involving  the  validity  of  certain  modes 
of  executing  deeds  or  wills.     A  decision  is  made,  and  the  peo- 
ple act  upon  it  for  years,  executing  all  such  instruments  in  the 
manner  prescribed.     After  that  some  one  raises  the  question 
ao-ain  and  contends  that  the  first  decision  is  erroneous.    Admit 
it  to  have  been  so ;  would  the  court  be  justified  in  overruling 
it  ?    Every  man,  whether  lawyer  or  layman,  would  answer  no. 
It  is  true  that  as  to  such  questions  it  was  more  a  matter  of  in- 
difference how  they  were  first  decided,  than  as  to  one  like  the 
present  involving  a  constitutional  principle  designed  to  se- 
cure so  just  an  end  as  equality  of  taxation.    And  I  admit  that 
this  fact  makes  some  distinction  between  the  cases,  and  might 
justify  a  struggle  to  regain  the  lost  ground  of  constitutional 
justice,  even  at  the  expense  of  some  inconvenience  and  hardship. 
But  it  is  equally  as  true  in  this  case  as  in  those  supposed  that 
the  decision  constituted  a  business  rule,  involving  the  validity 
of  the  entire  revenue  transactions  of  the  state,  and  of  all  the 
thousands  of  private  contracts  growing  out  of  them,  and  hav- 
ing been  acquiesced  in  and  acted  on  for  such  length  of  time, 
the  error  had  passed  beyond  the  reach  of  judicial  remedy. 
No  case  can  be  found  where  any  court  ever  changed  a  decis- 
ion once  made,  conceding  that  the  change  must  have  such  an 
effect.     On  the  contrary,  there  are  many  cases  which  would 
almost  sustain  the  proposition  that  the  practical  construction 
of  mere  administrative  officers,  which  has  been  acquiesced  in 
for  a  long  time,  without  any  judicial  decision  whatever,  should, 
in  such  cases,  be  followed,  though  in  conflict  with  the  consti- 
tution.    I  think  that  doctrine  has  been  carried  too  far ;  but 
where  there  has  been  a  judicial  decision,  the  reason  upon 
which  it  is  based  then  becomes  unanswerable.     It  is  said  that 
in  looking  at  the  consequences  of  a  change  to  see  whether  we 
are  at  liberty  to  make  it,  we  are  setting  aside  the  constitution, 
upon  grounds  of  policy.     .     .     .     The  maxim  stare  decisis,  it 
is  true,  rests  upon  grounds  of  policy.     But  it  is  equally  as 
true  that  the  constitution  itself  intended  that  that  maxim 
should  exist  in  the  judicial  system  which  it  established,  and 


INTERPRETATION   AND    CONSTRUCTION.  403 

should  be  applied  to  decisions  relating  to  its  own  construction, 
as  well  as  to  those  relating  to  any  other  legal  questions."  ' 

§  318.  What  decisions  involve  a  rule  upon  which  continuing 
rights  will  accrue,  and  needing  adherence  to  them,  for  the 
protection  of  such  rights,  is  determined  from  the  nature  of  the 
principle  decided.  An  adjudication  of  a  nature  to  be  a  rule 
of  property  will  be  presumed  after  the  lapse  of  time  to  have 
been  acted  upon,  so  that  rights  have  actually  vested  under  it 
and  are  dependent  upon  it.  To  presume  otherwise  is  to 
assume  that  the  law  is  idle  and  vain,  not  practical.^  The 
decisions  to  be  upheld  as  precedents  embrace  not  only  the 
point  necessarily  involved  in  them  and  decided  by  them,  but 
also  the  principles  which  subsequent  cases  declare  to  be  decided 
by  them.*  "  Courts  seldom  undertake  in  any  case  to  pass  upon 
the  validity  of  legislation  where  the  question  is  not  made  by 
the  parties;  their  habit  is  to  meet  questions  of  that  kind 
when  they  are  raised,  but  not  to  anticipate  them.  Until  then, 
they  will  construe  the  acts  presented  for  consideration,  define 
their  meaning,  and  enforce  their  provisions.  The  fact  that 
acts  may  in  this  way  have  been  often  before  the  court  is  never 
deemed  a  reason  for  not  subsequently  considering  their  valid- 
ity when  that  question  is  presented.  Previous  adjudications 
upon  other  points  do  not  operate  as  an  estoppel  against  the 
parties  in  new  cases,  nor  conclude  the  court  upon  the  consti- 
tutionahty  of  the  acts,  because  that  point  might  have  been 
raised  and  determmed  in  the  first  instance."  * 

§  319.  A  judicial  construction  of  a  statute  becomes  a  part  of 
it,  and  as  to  rights  which  accrue  afterwards  it  should  be  ad- 
hered to  for  the  protection  of  those  rights.  To  divest  them 
by  a  change  of  the  construction  is  to  legislate  retroactively.^ 
The  constitutional  barrier  to  legislation  impairing  the  obliga- 
tion of  contracts  applies  also  to  decisions  altering  the  law  as 
previously  expounded  so  as  to  affect  the  obligations  of  exist- 

1  Kjieeland  v.  IMilwaukee,  15  Wis.  ^  Boyd  v.  Alabama,  94  U.  S.  645, 
454.    See  Willis  v.  Owen,  43  Tex.  48 ;     648. 

Louisville,  etc.  R.  R  Co.  v.  County  ^  Rowan  v.  Runnels,  5  How.  134 ; 

Court,  1  Sneed,  668.  Douglass  v.   Pike  Co.  101  U.  S.  677, 

2  Davidson  v.  Allen,  36  Miss.  419.  686 ;  Oliio   Life  Ins.  &  Tr.  Co.  v.  De- 
3AVell3    on  Stare  Decisis,   §   601;  bolt,   16  How.    416;    Supervisors  v. 

Matheson  v.  Hearin,  29  Ala,  310.  United  States,  18  Wall.  71 ;  Fairfield 

V.  County  of  GaUatin,  100  U.  S.  47. 


4:04:  INTEKPRETATION   AND   CONSTKtJCTION'. 

ing  contracts  made  on  the  faith  of  the  earlier  adjudications. 
"  The  sound  and  true  rule  is,"  says  Taney,  C.  J.,  "  that  if  the 
contract  when  made  was  valid  by  the  laws  of  the  state,  as 
then  expounded  by  all  the  departments  of  its  government  and 
administered  in  its  courts  of  justice,  its  vahdity  and  obligation 
cannot  be  impaired  by  any  subsequent  act  of  the  legislature 
of  the  state  or  decision  of  its  courts  altering  the  construction  of 
the  law."  ^  "After  a  statute  has  been  settled  by  judicial  con- 
struction, the  construction  becomes,  so  far  as  contract  rights 
under  it  are  concerned,  as  much  a  part  of  the  statute  as  the 
text  itself,  and  a  change  of  decision  is  to  all  intents  and  pur- 
poses the  same,  in  its  effect  on  contracts,  as  an  amendment  of 
the  law  by  means  of  a  legislative  enactment."  - 

§  320.  The  maxim  of  stare  decisis  applies  only  to  decisions  on 
points  arising  and  decided  in  causes ;  it  has  been  held  not  to 
extend  to  reasoning,  illustrations  and  references  in  opinions.  The 
precedent  includes  the  conclusions  only  upon  questions  which 
the  case  contained,  and  which  were  decided.'  "  The  members  of 
a  court,"  says  Downey,  C.  J.,  "  often  agree  in  a  decision,  but 
differ  decidedly  as  to  the  reasons  or  principles  by  which  theu^ 
minds  have  been  led  to  a  common  conclusion.  It  is  therefore 
the  conclusion  only,  and  not  the  process  by  which  it  has  been 
reached,  which  is  the  decision  of  the  court,  and  which  has  the 
force  of  precedent  in  other  cases.  The  reasoning  adopted,  the 
analogies  and  illustrations  presented  in  real  or  supposed  cases, 
in  an  opinion,  may  be  used  as  argument  in  other  cases,  but  not 
as  authority.  In  these  the  whole  court  may  concur,  or  they  may 
not.  So  of  the  principle  concurred  in,  and  laid  down  as  govern- 
ing the  point  in  judgment,  so  far  as  it  goes  or  seems  to  go  beyond 
the  case  under  consideration."  *  The  precedent  must  include 
necessarily  the  logic  and  reasoning  of  a  syllogistic  legal  proposi- 
tion of  which  the  judgment  is  the  conclusion."  If  the  major 
premise,  which  is  the  law  of  the  case,  may  be  stated  in  several 
forms,  and  is  stated  differently  by  different  members  of  the 

1  Ohio  L.  Ins.  &  Tr,  Co.  v.  Debolt,  •*  Lucas  v.  Commissioners,  44  Ind. 
16  How.  416,  432.  524;    Louisville,    etc.    R.    R   Co.   v. 

2  Douglass  V.  Pike  Co.  101  U.  S.  County  Court,  1  Sneed,  637 ;  Carroll 
677,  687 ;  Tayloe  v.  Thomson,  5  Pet.  v.  CarroU,  16  How.  275. 

358;  Geddes  v.  Brown,  5  Phila.  180.        5  3  Black.  Com.  396;  Lamphear  t. 

3  Lucas  V.  Commissioners,  44  Ind.     Buckingham,  33  Conn.  237. 
641. 


INTEKPKETATION    AND   CONSTRUCTION.  40o' 

court  wlio  join  in  tlie  conclusion,  this  diversity  Avill  impair 
the  force  of  the  precedent.  A  judicial  decision  is  to  be  re- 
garded as  conclusive,  not  only  of  the  point  presented  in  argu- 
ment and  expressly  decided,  but  of  every  other  proposition 
necessarily  involved  in  reaching  the  conclusion  expressed.^  An 
opinion  of  the  supreme  court  is  the  law  of  the  case  in  which 
it  is  pronounced  on  a  new  trial,  and  in  that  court  on  a  second 
review.- 

§321.  Effects  aud  consequences. —  In  the  construction  of 
statutes,  where  the  language  is  obscure  or  ambiguous,  or  for 
any  reason  its  precise  intent  is  not  plain  and  cannot  be  made 
so  by  the  context  or  other  statutes  in  jxiri  materia^  the  eflects 
aud  consequences  enter  with  more  or  less  force  into  consider- 
ation; nor  are  they  entirely  ignored  in  the  reading  of  any 
statute.  But  when  the  terms  of  a  statute  are  plain,  unambig- 
uous and  explicit,  the  courts  are  not  at  liberty  to  go  outside 
of  the  language  to  search  for  a  meaning  which  it  does  not  rea- 
sonably bear.^  When  there  is  no  express  repeal  none  is  pre- 
sumed to  be  intended;  and  the  effect  of  a  new  statute  in 
conjunction  with  other  statutes,  with  reference  to  established 
institutions,  systems  and  policies,  is  always  in  view.*    It  is  pre- 

1  Bloodgood  V.  Grasey,  31  Ala.  575,  sarily  involved  in  it ;  at  least,  when 

587.    In  this  case  Walker,  J,,  said :  the  contrary  does  not  appear." 
"  It  was  contended  in  the  discussion        -  Dewey  v.  Gray,  2  CaL  374 ;  Bane 

of  tliis  case  that  the  only  point  de-  v.  Wick,  6  Oliio  St.  13 ;  Gray  v.  Gray, 

cided,  or  m  the  mind  of  the  court,  34  Ga.   499 ;     Thoniason   v,   DUl,  34 

was  that  made  in  argument.    The  re-  Ala.  175 ;  Stein  v.  Ashby,  30  ifL  3G3 ; 

suit  of  that  position  would  be  to  take  Huffman  v.  State,  id.  532 ;   Pearson 

from  judicial  decisions,  where  there  v.   Darrington,  32  id.  227 ;  Stacy  v. 

was  no  opinion,  the  authority  of  an  Vermont,  etc.  R.  R.  Co.  32  Vt  551 ; 

adjudication    upon  all    propositions  Parker  v.  Pomeroy,  2  Wis.  112. 
wliich  were  too  plain  or  too  well  rec-        ^  United    States    v.   The  Sadie,  41 

ognized  by  the  bench  and  bar  to  be  Fed.  Rep.  396. 

questioned ;   and  thus  the  imiversal        ^  Greenhow    v.  James,  80  Va.  636 ; 

and  iDidisiJuted  sanction  of  a  legal  Baxter  v.  Tripp,  12  R.  I.  310 ;  Greuatla 

principle  ^sould  become  a  barrier  to  Co.    Supervisors     v.     Brogden,    113 

proof  by  judicial  decisions  of  its  ex-  U.  S.  261 ;  Att'y-Gen'l  v.  Smitli,  31 

istence.  It  better  accords  with  reason  Midi-  359 ;  Blackwood  v.  Van  Vleit, 

to  regard  a  judicial  tribunal  as  as-  30  id.  118;  Rowley  v.  Stray,  32  id. 

sorting,  and  intending  to  assert,  every  70 ;  Burnliam  v.  Onderdonk,  41  N.  Y. 

proposition  wliich  is  indispensable  to  425 ;  Fort  v.  Burcli,  6  Barb.  60 ;  ^liuet 

the  conclusion  expressed,  and  neces-  v.  Leman,  20  Beav.  269 ;  Lindsey  v. 

Rottaken,  32  Ark.  619. 


•i  '6 


INTEIIPEETATION    AND    CONSTRUCTION. 


sumed  that  there  is  no  intention  to  affect  them  any  further 
than  the  phiin  terms  of  the  new  statute  require. 

Although  the  word  "  citizen,"  used  in  its  most  common  and 
comprehensive  sense,  includes  women,  yet  an  act  providing 
for  the  admission  of  a  citizen  of  proper  residence,  age  and 
character  to  practice  as  an  attorney  has  been  held  not  to  in- 
clude women,  because  such  construction  would  be  a  departure 
from  the  antecedent  policy  of  the  legislature,  and  introduce  a 
fundamental  change  in  long-established  principles.^  Courts  will 
be  very  reluctant  to  overturn  them,  or  essentially  modify  them 
by  extending  the  operation  of  a  dubious  statute. 

§  322.  "  In  the  consideration  of  the  provisions  of  any  statute, 
they  ought  to  receive  such  a  reasonable  construction,  if  the 
•words  and  subject-matter  wiU  admit  of  it,  as  that  the  exist- 
Y^g  rights  of  the  public,  or  of  individuals,  be  not  infringed."  - 
Considerations  of  what  is  reasonable,^  convenient,*  or  causes 


1  Robinson's  Case,  131  Mass.  376; 
l;:-adweirs  Case,  55  111.  535 ;  GoodeU's 
<  ■:ise,  39  Wis.  232 ;  BradweU  v.  State, 
1  >  WaU.  130.  See  Opinion  of  Jus- 
tices, 136  Mass.  578. 

2  Wales  V.  Stetson,  2  Mass.  146. 

3  Haney  v.  State,  34  Ark.  263 ;  State 
\.  De  Gress,  53  Tex.  387;  Quin  v. 
C'Keeffe,  10  Ir.  C.  L.  (N.  S.)  411; 
Church  V.  Crocker,  3  Mass.  17,  21 ; 
Commonwealth  v.  Cambridge,  20 
Pick.  267,  272 ;  Goddard  v.  Boston,  id. 
407;  Commonwealth  v.  Baily,  13 
Allen,  541,  545 ;  Paddock  v.  Cameron, 
8  Cow.  212 ;  Van  Rensselaer  v.  Sheriff, 
1  id.  443,  456 ;  Kephart  v.  Farmers', 
etc.  Bank,  4  Midi.  602;  Green  v. 
Graves,  1  Doug.  (Mich.)  351 ;  Dixon  v. 
Caledonian  R'y  Co.  L.  R.  5  App.  Cas. 
827 ;  Glenn  v.  Lopez,  1  Harper,  105 ; 
Neenan  v.  Smith,  50  Mo.  525.  A 
statute  wUl  not  be  consti-ued  to  re- 
quire a  vain  thing.  Butler  v.  Roch- 
ester, 4  Hun,  321.  When  it  requu-es 
notice,  it  will  requu-e  a  reasonable 
notice.  Burden  v.  Stein,  25  Ala. 
455.  On  general  words  reasonable 
limitations  wUl  be  imposed.  Martin 
V.  Robinson,  67  Tex.  368, 379 ;  McFar- 


land  V.  Stone,  17  Vt.  173 ;  Ricard  v. 
WiUiams,  7  Wheat.  59,  115.  A  rea- 
sonable time  has  no  determinate  num- 
ber of  days  or  montlis,  as  apphed  to 
every  case,  but  must  be  determined 
in  each  case  upon  all  the  elements  of 
it  which  affect  that  question.  Thomp- 
son V.  Sti'ickland,  52  Miss.  574. 

*  Putnam  v.  Longley,  11  Pick.  489 ; 
In  re  Alma  SpLmiing  Co.,  L.  R.  16  Ch. 
Div.  686 ;  Shute  v.  Wade,  5  Yerg.  8 ; 
Home  V.  Raihroad  Co.  1  Cold.  72,  78 ; 
Van  Rensselaer  v.  Sheriff,  1  Cow.  443, 
457.  C,  a  German,  came  to  this 
country  vdth  a  woman  whom  he  held 
out  as  his  wife,  with  whom  he  Uved 
many  years  as  such,  and  by  whom  he 
had  several  children.  He  afterwards 
abandoned  her  and  went  away.  After 
he  had  been  gone  eight  or  nine  years, 
she,  not  having  heard  of  him,  and 
supposing  him  to  be  dead,  married 
another  man  by  whom  she  had  chil- 
dren. After  the  death  of  tliis  man 
C.  returned.  On  the  settlement  of 
his  estate  a  question  of  the  legitimacy 
of  the  childi-en  of  the  second  mar- 
riage was  raised  in  Brower  v.  Bowers 
1  Abb.    App.   Dec.  214    Harris,  J., 


INTERPRETATION    AND    CONSTK LOTION. 


407 


hardsliip  and  injustice,'  have  a  potent  influence  in  many  cases. 
It  is  always  assumed  that  the  legislature  aims  to  promote  con- 
venience, to  enact  only  what  is  reasonable  and  just.  There- 
fore, when,  any  suggested  construction  necessarily  involves 
a  flagrant  departure  from  this  aim,  it  will  not  be  adopted  if  any 
other  is  possible  by  which  sucli  pernicious  consequences  can 
be  avoided.- 

A  statute  declaring  in  full  force  all  ordinances  of  a  city  or 
other  corporation  in  operation  at  its  date  does  not  embrace 
one  which  has  been  pronounced  judicially  to  be  inoperative.'' 
An  act  validating  certain  sales  made  by  persons  in  a  fiduciary 
capacity,  in  the  event  of  any  irregularity  or  defect  existing  in 
the  judicial  appointment  or  cjualification  of  such  trustee,  cures 


said :  "  I  am  iucliued  to  tliink  that  the 
fact  that  they  came  from  Germany, 
professing  to  be  husband  and  wife, 
that  they  hved  together  in  tliat  re- 
lation for  several  years,  and  had  chU- 
■dren  who  were  acknowledged  as  the 
issue  of  such  a  marriage,  is  sufficient 
eN'idence  of  a  maiTiage  in  fact,  even 
though  it  may  have  the  effect  to  in- 
validate a  subseciuent  maiTiage.  A 
very  considerable  portion  of  the  pop- 
ulation of  our  countrj'  is  made  up  of 
Eiu'opean  emigrants.  Of  these  a 
large  proportion  are  married  when 
they  arrive  here;  and  even  when 
marriages  are  celebrated  here,  so  mi- 
gratory are  the  habits  of  the  Ameri- 
can i^eople  that  in  many  cases  it 
would  be  no  easy  thing  to  prove  a 
marriage  by  those  who  witnessed  the 
ceremony.  It  is  well  remarked  by 
Tilghman,  C.  J.,  in  Chambers  v.  Dick- 
son, 3  Serg.  &  R.  475;  that,  in  estab- 
lisliing  riUes  of  evidence,  arguments 
from  inconvenience  have  just  weight 
And  we  must  pay  great  attention  to 
the  situation  of  our  o%vn  coimtry, 
which  is  not  in  all  instances  adapted 
to  regulations  that  are  very  proper  in 
other  countries." 

1  Plumstead    Board  of  "Works    v. 
Spackman,  L.   R.  13  Q.  B.   Div.  878 ; 


Lombard  v.  Trustees,  etc.  73  Ga.  322 ; 
Collins  V.  Carman,  5  Md.  503. 

-  Metropohtan  Asj'lum  Dist.  v.  Hill, 
L.  R.  6  Ap.  Cas.  208;  Richards  v. 
Dagget,  4  ]\Iass.  537 ;  State  v.  WOtz, 
11  La,  Ann.  439 ;  Bell  v.  Jones,  10  Md. 
322 ;  Robmson  v.  Varnell,  16  Tex.  382 ; 
Ham  V.  McClaws,  1  Bay,  92 ;  United 
States  V.  Hunter,  Pet.  C.  C.  10 ;  Flint 
R.  St.  Co.  V.  Foster.  5  Ga.  201 ;  Mc- 
Lelland  v.  Shaw,  15  Tex.  319 ;  Reg.  v. 
Mallow  Union,  12  Ir.  C.  L.  (N.  S.)  35 : 
River  Wear  Com'i-s  v.  Adamson,  L.  R. 
2  Ap.  Cas.  743 ;  Mersey  Steel  &  Ir.  Co. 
V.  Naylor,  L.  R.  9  Q.  B.  Div.  648; 
Shu'ges  V.  Crowuinshield,  4  Wheat 
202 ;  Plumstead  Board  of  Works  v. 
Spackman,  L.  R.  13  Q.  B.  Div.  878 ; 
Mayor,  etc.  v.  Moore,  6  H.  &  J.  381 ; 
Buckuer  v.  Real  Estate  Bank,  5  Ark. 
536 ;  Thayer  v.  Dudley,  3  Mass.  296 ; 
Holbrook  v.  Holbroo'k,  1  Pick.  248, 
254;  Mendon  v.  County  of  Worces- 
ter, 10  Pick.  235 ;  Eaton  v.  Green,  22 
id.  526,  532;  Holbrook  v.  Bhss,  9 
Allen,  69,  75;  Connnonwealth  v. 
Mimson,  127  Mass.  459 ;  Kerlin  v. 
Bull.  1  Dall.  (Pa.)  175,  178;  Jei-sey  Co. 
v.  Davison,  29  N.  J.  L.  415. 

3  Allen  v.  Savannah,  9  Ga.  286; 
Bridge  v.  Branch,  L.  R.  1  C.  P.  Div. 
633. 


408  INTERrRETATION    AND    CONSTRUCTION. 

only  sucli  defects  as  occur  in  proceedings  of  courts  which  have 
jurisdiction  of  tlie  subject-matter.  It  does  not  validate  a  sale 
made  by  a  trustee  who  was  irregularly  and  defectively  ap- 
pointed or  qualified  by  a  court  which  had  no  jurisdiction  to 
make  such  appointment.^  A  statute  authorizing  an  officer  to 
convey  to  the  state  certain  lands  held  by  a  county  by  vu-tue 
of  tax  deeds  issued  upon  sales  for  delinquent  taxes  theretofore 
made,  was  held  not  to  apply  to  lands  of  which  the  tax  deeds 
were  void  upon  their  face.'^  This  conclusion  was  adhered  to, 
though  it  was  shown  that  there  were  no  lands  to  which  the 
statute  could  apply.'* 

§  323.  A  construction  which  must  necessarily  occasion  great 
public  and  private  mischief  must  never  be  preferred  to  a  con- 
struction which  will  occasion  neither,  or  not  in  so  great  a  de- 
gree, unless  the  terms  of  the  instrument  absolutely  require 
such  preference.  Of  two  constructions,  either  of  which  is  war- 
ranted by  the  words  of  the  amendment  of  a  public  act,  that  is 
to  be  preferred  which  best  harmonizes  the  amendment  with 
the  general  tenor  and  spirit  of  the  act  amended.*  A  statute 
may  be  construed  contrary  to  its  literal  meaning,  when  a  fit- 
eral  construction  would  result  in  an  absurdity  or  inconsist- 
ency, and  the  words  are  susceptible  of  another  construction 
which  will  carry  out  the  manifest  intention.^ 

§  324.  Statutes  will  be  construed  in  the  most  beneficial  way 
which  their  language  will  permit  to  prevent  absurdity,  hard- 
ship or  injustice;  to  favor  pubhc  convenience,  and  to  oppose 
all  prejudice  to  public  interests.^     The  considerations  of  evil 

1  Halderman  v.  Young,  107  Pa,  St.  McConnell,  9  Watts,  17 ;  Welch  v. 

324.  Kline,    57  Pa.    St.   428;    Sinnott    v. 

^Easley  v.  Whipple,  57  Wis.  485;  Whitechapel,  3  C.  B.  (N.  S.)  674;  Pat- 

Haseltine  v.  Hewitt,  61  id.  121.  ten  v.  Rhymer,  3  E.  &  E.  1 ;  Wliistler 

3  Id.  V.  Forster,  14  C.  B.  (N.  S.)  248 ;  Stone 

4  Griffin's  Case,  Chase's  Dec.  364.  v.  Yeovil,  L.  R.  1  C.  P.  Div.  691 ;  Aus- 
a  Walton,  Ex  parte,  L,  R.  17  Ch  tin  v.  Bunyard,  6  B.  &  S.  687;  Gatty 

Div.  746.  V.  Fry,  L.  R.  2  Ex.  Div.  265 ;  Gibson  v. 

«  Van  Fleet  v.  Van  Fleet,  49  IMich.  Jenney,  15  Mass.  205 ;  Smith  v.  People, 

610;   Neenan  v.  Smith,  50  Mo.  525;  47  N.  Y.  330 ;  Bulkley  v.  Eckert,  3  Pa. 

People  V.  Bums,  5  Mich.  114 ;  Jersey  St.  368 ;  Gore  v.  Brazier,  3  JNIass.  523 ; 

Co.  V.  Davison,  29  N.  J.  L.  415 ;  Opin-  Wassell  v.  Tminah,  25  Ark.  101 ;  Du- 

ion  of  Justices,  7  Mass.  523 ;  Kerlin  quesne  Savings  Bank's  Appeal,  96  Pa. 

V.  BuU,  1  DaU.  (Pa.)  175 ;  Stewart  v.  St.  298 ;  Kelly  T.  v.  Union  T.  5  Watts 

Keemle,  4  S.  &  R.  72 ;  McCloskey  v.  &  S.  535 ;  Nicholas  v.  Phelps,  15  Pa. 


INTEKPKETATION   AND   CONSTEUCTION.  409* 

and  liardsliip  may  properly  exert  an  influence  in  giving  a  con- 
struction to  a  statute  when  its  language  is  ambiguous  or  un- 
certain and  doubtful,  but  not  when  it  is  phun  and  explicit.^ 
The  same  may  be  said  of  the  consideration  of  convenience,  and 
in  fact  of  any  consequences.  If  the  intention  is  expressed  so 
plainly  as  to  exclude  all  controversy,  and  is  one  not  controlled 
or  affected  by  any  provision  of  the  constitution,  it  is  the  law,, 
and  courts  have  no  concern  with  the  effects  and  consequences ; 
their  simple  duty  is  to  execute  it.^  The  argument  of  incon- 
venience is  very  strong  when  the  statute  is  ambiguous  and 
fairly  open  to  two  constructions.  Then  the  argument  of  in- 
convenience, lili;e  the  argument  of  absurdity,  may  be  used 
with  great  force ;  but  when  the  construction  is  clear  beyond 
controversy,  it  is  no  answer  to  say  that  there  are  some  conse- 
quences which  will  cause  inconvenience  which  were  probably 
not  contemplated  by  the  framers.*  The  master  of  the  rolls 
said :  "  With  regard  to  inconvenience  I  think  that  is  a  most 
dangerous  doctrine.  I  agree  if  the  inconvenience  is  not  only 
great  but  what  I  may  call  absurd  inconvenience,  by  reading 
an  act  in  its  ordinary  sense,  whereas  if  you  read  it  in  a  man- 
ner in  which  it  is  capable  of  being  read,  though  not  its  ordi- 
nary sense,  there  would  not  be  any  inconvenience  at  all,  there 
would  be  reason  why  you  should  not  read  it  according  to  its 
ordinary  grammatical  meaning."  *  The  same  has  been  said  of 
listening  to  hardship.^  Su»h  arguments  are  applicable  only  to 
considerations  of  convenience  and  hardship  which  generally 
spri]]g  from  a  particular  construction,  not  such  as  may  occur 

St.  36 ;  Mayor,  etc.  v.  Eoot,  8  Md.  95 ;  Learned  v.  Corley,  43  Miss.  687.    See 

Pittsburg,  etc.  R.  R.  Co.  v.  S.  W.  Pa.  Dudley  v.  Reynolds,  1  Kan.  285. 

R'y  Co.  77  Pa,  St.  173 ;    Samuels  v.  « In  re  Alma  Spinning  Co.,  L.  R.  16 

Commonwealth,  10  Bush,  4i)l ;  Coy  v.  Ch.  Div.  686. 

Coy,  15  Minn.  119;   Swift's  Appeal,  4  Reg.  v.  Tonbridge  Overseers,  L.  R. 

Ill  Pa.  St.  516 ;  S.  C.  2  Cent.  Rep.  311 ;  13  Q.  B.  Div.  312 ;  Rex  v.  Poor  Law 

Rex  V.  Dorsetshire,  15  East,  200 ;  Rex  Com'rs,  6  Ad.  &  E.  1,  7.    See  Rex  v. 

V.   Yorkshu-e,   1   Doug.   192 ;   In  re  Ramsgate,  6  B.  &  C.  712,  715 ;   Rex 


Wain'^^^Tight,  1  Pliil.  258;  Quin  v 
O'Keeflfe,  10  Ir.  C.  L.  (N.  S.)  411 
412. 

1  Collins  V.   Carman,    5    Md.   503 
Jolmsou  V.  R.  R.  Co.  49  N.  Y.  456. 

2  Blake  v.  Heyward,  BaUey  Eq.  208 


V.  Barham,  8  B.  &  C.  99;  Lamond 
V.  Eitfe,  3  Q.  B.  910 ;  Everett  v.  Wells„ 
2  Scott,  N.  E.  531 ;  Newell  v.  People,. 
7  N.  Y.  97 ;  Bidwell  v.  Wliitaker,  1 
Mich.  469,  479. 
5  Munro  v.  Butt,  8  E.  &  B.  754. 


410  INTEEPEETATION   AND    CONSTRUCTION. 

in  an  individual  or  exceptional  case.^  An  act  should  be  so 
construed  as  to  bring  it,  if  possible,  within  the  legislative  au- 
thority ;  ^  to  limit  its  general  words  to  the  subject-matter  or 
object  of  the  act ;  as  including,  justifying  or  requiring  lawful 
acts  and  regular  proceedings. 

§  325.  Expressio  imiiis  est  exclusio  alteriiis. —  This  maxim, 
like  all  rules  of  construction,  is  applicable  under  certain  condi- 
tions to  determine  the  intention  of  the  law-maker  when  it  is 
not  otherwise  manifest.  Under  these  conditions  it  leads  to 
safe  and  satisfactory  conclusions ;  but  otherwise  the  expres- 
sion of  one  or  more  things  is  not  a  negation  or  exclusion  of 
other  things.  What  is  expressed  is  exclusive  only  when  it  is 
creative,  or  in  derogation  of  some  existing  law,  or  of  some 
provisions  in  the  particular  act.  The  maxim  is  applicable  to 
a  statutory  provision  which  grants  originally  a  power  or  right. 
In  such  cases  the  power  or  right  originates  with  the  statute, 
and  exists  only  to  the  extent  plainly  granted ;  the  right  while  in- 
choate, and  the  power  so  far  as  not  exercised,  cease,  if  the 
statute  be  repealed,  and  if  the  statute  provides  the  mode  in 
which  they  shall  be  exercised,  that  mode  must  be  pursued  and 
no  other.  This  conclusion  is  almost  self-evident ;  for  since  the 
statute  creates  and  regulates,  there  is  no  ground  for  claim- 
ing or  proceeding  except  according  to  it.*  In  other  words, 
where  a  statute  gives  a  new  right  and  prescribes  a  particu- 
lar remedy,  such  remedy  must  be  strictly  pursued,  and  the 
party  is  confined  to  that  remedy."  "  The  rule  is  certain,"  said 
Lard  Mansfield,  "  that  where  a  statute  creates  a  new  offense, 
hy  prohibiting  and  making  unlawful  anything  which  was  lawful 

1  EndL  on  St.  §  263.  bury,    3  Mass.  307 ;  Smith  v.  Drew, 

2Farnum     v.     Blackstone    Canal  5    id    514;    Dudley    v.   Mayliew,   3 

Corp.  1  Sumn.  46 ;  Sage  v,  Brooklyn,  N.  Y.  9 ;  Wiley  v,  Yale,  1  Met.  553 ; 

89  N.  Y.  189 ;  People  v.  McClave,  99  Crosby  v.  Bennett,  7  id.  17 ;  Smith  v, 

N.  Y.  83.  Lockwood,   13  Barb.   209 ;  Thm-ston 

3  Guerard  v.  PolhiU,  E.  M  Charlt.  t.  Prentiss,  1  Mich.  193 ;  Conwell  v. 

237 ;  post,  §§  240,  327.  Hagerstown  Canal  Co.   2  lud.  588 ; 

<  1  Com.  Dig.  44-48;  Foster's  Case,  McCormack  y.  Terre  Haute,  etc.  R.R. 

11  Rep.  566,  64;  9  Bac.  Abr.  259,  260;  Co.  9  Ind.  283;  Countess  of  Rothes 

Rex  V.  Robinson,  2  Burr.  803 ;  Bailey  v.    Ku-kcaldy  Water-works  Coni'rs, 

■V.  Biyan,  3  Jones  (N.  C),  357 ;  Lang  L.  R.  7  Ap.  Cas.  706 ;  New  Haven  v. 

-v.  Scott,  1  Blackf.  405;  Camden  v.  Whitney,   36    Conn.   373;    Smith  v. 

Allen,  26  N.  J.  L.  398 ;  Almy  v.  Har-  Stevens,   10  Wall.  321 ;  Dist.  T'p    of 

ris.  5  John.  175 ;  Gedney  v.  Tewks-  Dubuque  v.  Dubuque,  7  Iowa,  262. 


INTERPRETATION    AND    CONSTRUCTION.  411 

before,  and  appoints  a  specific  remedy  against  such  new  offense 
{not  antecedently  unlawful),  by  a  particular  sanction  and 
2)articular  method  of  proceeding,  that  particular  method  must 
be  pursued  and  no  other." "  Where  a  statute  authorizes  a 
public  work,  and  points  out  a  mode  in  which  parties  injured 
thereby  may  obtain  compensation,  that  remedy  is  exclusive ;  '' 
and  the  scope  of  the  remedy  or  points  of  compensation  are 
confined  to  the  statutory  limits.'  In  Arkansas  the  whole  sub- 
ject of  interest,  so  far  as  regards  contracts  for  the  payment  of 
money,  express  or  implied,  was  regulated  by  statute,  and  it 
was  held  these  provisions  excluded  its  allowance  in  other  cases 
than  those  enumerated.*  A  statute  prohibited  the  sale  Avith- 
out  license  of  certain  specified  liquors,  and  this  specification 
excluded  all  others  from  the  prohibition,  so  that  they  were  un- 
affected by  the  requirement  to  obtain  license.-^  When  a  stat- 
ute, defining  an  offense,  designates  one  class  of  persons  as 
subject  to  its  penalties,  all  other  persons  are  deemed  to  be  ex- 
empted." As  a  general  rule  the  exclusion  of  one  subject  or  thing 
in  a  statute  is  the  inclusion  of  all  other  thino-s.  Therefore  the 
exclusion  of  the  power  of  the  court  to  impose  a  fine  of  less 
than  $100,  by  implication  gives  the  power  to  impose  a  fine 
of  more  than  that  sum.'  A  grant  contained  several  restric- 
tions; a  subsequent  statute  repeated  the  grant  in  general 
terins  and  repealed  all  inconsistent  acts,  with  a  saving  clause 
including  one  of  the  restrictions;  it  was  held  that  all  the  other 
restrictions  were  repealed.^     A  general  statute  provided  a  gen- 

iRex  T.   Robinson,  2  Burr,   at  p.  "Water- works    Com'rs,   L.   R.   7  Ap. 

803 ;    Castle's  Case,    Cro.    Jac.    644 ;  Cas.  70G. 

Stephens    v.    Watson,    1    Salk.    45 ;  4  Watkins  v.  Wassell,  20  Ark.  410, 

Stui-geon  V.  State,   1  Blackf.   39;   1  420. 

W.  Saiind.  135,  note  4 ;  id.  250,  note  ^  Feldman  v.  IMorrison,  1  IlL  App. 

3 ;  State  v.  Loftin,  2  Dev.  &  Bat.  31 ;  460. 

State  V.  Corwin,  4  Mo.  609 ;  Camden  6  Howell  v.   Stewart,  54  Mo.  400 ; 

v.  Allen,  26  N.  J.  L.  398 ;  Smith  v.  Jaques  v.  Gohghtly,  2  W.  BL  1073 ; 

Lockwood,   13  Barb.   209 ;  New  Al-  State  v.  Jaeger,  63  :\Io.  403,  409. 

bany,   etc.   R.   R.   Co.  v.  Connelly,  7  '  Hankms  v.  People,  106  IlL  628 ; 

Ind.  32 ;  Victory  v.  Fitzpatrick,  8  id.  Drake    v.    State,   5  Tex.   App.    649 ; 

281 ;  United  States  v.  Dickey,  Morris  Cliiles  t.  State,  2  id.  37.     See  Stuui> 

(Iowa),  412.  son  r.  Pond,  2  Curtis.  502. 

2  Calking  v.  Baldwin,  4  Wend.  667.  S"  McRoberts v.  Washbmne,  10 Minn. 

3  Countess  of  Rothes  v.  Kirkcaldy  23. 


412  IXTERPKETATION    AND    CONSTKUCTION. 

eral  saving  of  rights,  penalties  and  duties.  An  independent 
statute  provided  penalties  for  selling  intoxicating  liquors.  This 
act  was  subsequently  repealed  with  a  special  saving  of  pend- 
ing actions.  This  saving  was  held  to  be  governed  by  the 
maxim  under  consideration.  Doubtless  an  absolute  repeal 
without  any  express  saving  would  have  let  in  the  general  sav- 
ing, but  the  repeal  being  qualified  by  a  provision  in  the  re- 
pealing  act,  which  was  narrower  than  the  general  saving,  and 
which  could  have  no  effect  unless  it  was  an  exclusive  effect,  it 
showed  the  intention  of  the  legislature  to  exclude  any  other 
saving.'  It  is  moreover  Avithin  this  cognate  principle,  that 
specific  provisions  relating  to  a  particular  subject  must  govern 
in  respect  to  that  subject,  as  against  general  provisions  in 
other  parts  of  the  law  which  might  otherwise  be  broad  enough 
to  include  it.^  Accordingly  where  a  legislative  act  contained 
two  sets  of  provisions,  one  giving  specific  and  precise  dh-ec- 
tions  to  do  a  particular  thing,  and  the  other  in  general  terms 
prohibiting  certain  acts,  which  would,  in  the  general  sense  of 
the  words  used,  include  the  particular  act  before  authorized, 
then  the  general  clause  does  not  control  or  affect  the  specific 
enactment.^  Every  part  of  a  statute  must  be  viewed  in  con- 
nection with  the  whole,  so  as  to  make  all  its  parts  harmonize^ 
if  practicable,  and  give  a  sensible  and  inteUigeiit  effect  to  each. 
It  is  not  presumed  that  the  legislature  intended  any  part  of  a 
statute  to  be  without  meaning.''  An  act  which  extended  one 
of  the  previous  penal  regulations  for  the  government  of  mon- 
eyed corporations  to  the  free  banlvs,  making  it  a  misdemeanor 
for  them  to  issue  bills  or  notes  on  time  or  interest,  was  in 
truth  a  legislative  assertion,  binding  on  the  judiciary,  that 
such  regulation  did  not  previously  apply,  and  that  none,  ex- 
cept the  particular  one  so  expressly  selected,  should  there- 
after apply,  to  the  free  banks.-^ 

§  326.  Where  authority  is  given  to  do  a  particular  thing, 
and  the  mode  of  doing  it  is  prescribed,  it  is  limited  to  be  done 
in  that  mode ;  aU.  other  modes  are  excluded.  Such  affirmative 
legislation,  and  any  other  which  introduces  a  new  rule,  imply 

1  State  V.  Showers,  34  Kan.  269.  <  Id. ;  McCartee  v.  Orphan  Asylum, 

2  Felt  V.  Felt,  19  Wis.  19G.  9  Cow.  437 ;  ante,  §  249. 

s  State  V.  Trenton,  38  N.  J.  L.  64.  s  Curtis  v.  Leavitt,  17  Barb.  309. 


INTEKPHKTATION    AND    CONSTKUCTION.  413 

a  negative.^  It  was  required  ])Y  a  statute  that  "  all  sales  by 
any  sheriff  or  other  officer,  by  virtue  of  any  execution  or  other 
process,  shall  be  made  at  the  court-house  of  the  county,  except 
when  personal  property  too  cunilK'rsome  to  be  removed  shall 
be  levied  on,  .  .  .  and,  also,  except  where  cattle,  hogs, 
sheep  or  stock,  other  than  horses  and  mules,  are  levied  on." 
These  exceptions  were  held  to  exclude  others,  and  therefore  to 
render  the  statute  imperative  and  mandatory .^  A  provision 
in  a  statute  that  a  failure  to  give  a  specified  notice  shall  not  in- 
validate an  election  does  not,  however,  imply  that  all  the  other 
requirements  must  be  complied  with  as  mandatory  conditions.' 
§  327.  Where  a  statute  enumerates  the  persons  or  things  to 
be  affected  by  its  provisions,  there  is  an  implied  exclusion  of 
others ;  there  is  then  a  natural  inference  that  its  application 
is  not  intended  to  be  general.*  Thus,  where  a  statute  enumer- 
ates the  cases  in  which  a  married  woman  may  sue,  she  is 
limited  to  those  cases.^  An  act  jn-oviding  for  levying  the  poor 
rate  specified  coal  mines  only,  and  it  was  therefore  held  that 
no  other  mines  were  ratable."  An  act  allowed  a  house  and 
land  to  be  joined  together  for  the  purpose  of  conferring  a  . 
qualification ;  it  was  held  that  two  different  buildings  could  not 
be  joined  for  the  same  purpose."  The  enumeration  of  powers 
granted,  to  national  banks  in  the  eighth  section  of  the  national 
bank  act  is  exclusive ;  being  granted  the  power  to  loan  money 
on  personal  security,  such  banks  are  precluded  from  loaning  on 
real  estate  mortgages ;  and  mortgages  to  such  banks  to  secure 
prior  loans  being  expressly  permitted,  it  was  held  that  none 
given  to  secure  future  loans  are  valid.^  AYhen  a  statute  specifies 
the  effects  of  a  certain  provision,  courts  will  presume  that  all  the 
effects  intended  by  the  law-maker  are  stated.^   Where  an  act 

1  Smith  V.   Stevens,  10  Wall.  821;        6  Reg.  v.  Seale,  5  E.  &  B.  1. 

New  Haven  V.  Whitney,  86  Conn.  373 ;  'Dewhurst  v.  Feilden,  7  M.  &  G. 

District  T'p  of  Dubuque  v.  Dubucjue,  182. 

7  Iowa,  263 ;  Chil  (is  V.  Smith,  55  Barb.  &  Fowler  v.  Scully,  73  Pa.  St.  456. 

45 ;  Rogers  v.  Kennard,  54  Tex.  30 ;  461.    This  construction  is  not  disap- 

Rich  V.  Rayle,  2  Humph.  404.    See  proved,  but  only  the  government  can 

Intoxicating  Liquor   Cases,  25  Kan.  raise  the  objection  to  the  practice  of 

751.  the  bank.   Nat  Bank  v.  Matthews,  OS 

2  Koch  V.  Bridges,  45  Miss.  247.  U.  S.  621 ;  Nat  Bank  v.  Wliitney,  103 

3  Taylor  v.  Taylor,  10  ]\Iiun.  107.  id.  90. 

nVilb.  on  St  190.  9  Perkins    v.   Thornburgh,   10  CuL 

SMUler  v.  Miller,  44  Pa.  St  170, 173.     189,  191. 


414:  INTERPKETATION    AND   COXSTEUCTION. 

expressly  repeals  a  specified  portion  of  another  act,  it  follows- 
that,  in  the  judgment  of  the  legislature,  no  farther  repeal  was 
necessary.^     The  repeal  of  one  clause  of  a  section  raises  a  clear 
implication  that  nothing  else  was  intended.^     This  application 
of  the  rule  is  not  very  important,  for  an  implied  repeal  may 
result  from  an  irreconcilable  contradiction,  or  from  other  evi- 
dence of  an  intent  to  extend  the  repeal  or  a  saving  from  a 
general  repeal*    When  a  revisory  act  prescribes  its  operation 
upon  a  previous  act,  it  will  have  no  other  effect/     A  court  of 
a  justice  of  the  peace,  or  other  magistrate  having  only  such 
jurisdiction  as  is  granted  by  statute,  and  whose  procedure  is 
regulated  thereby,  has  only  such  jurisdiction  as  is  granted 
expressly  or  by  necessary  implication.'^    And  those  particulars 
of  procedure  which  the  statutes  regulate  are  to  be  substan- 
tially followed,  and  no  others  are  essential.^     The  appellate 
jurisdiction  of  the  federal  supreme  court  is  conferred  by  the 
constitution  "  with  such  exceptions  and  under  such  regulations 
as  congress  may  make ; "  therefore,  acts  of  congress  affirming 
such  jurisdiction  have  always  been  construed  as  excepting 
from  it  all  cases  not  expressly  described  and  provided  for. 
Hence,  when  congress  enacts  that  that  court  shall  have  ap- 
pellate jurisdiction  over  final  decisions  of  the  circuit  courts  in 
certain  cases,  the  act  is  held  to  operate  as  a  negative  or  excep- 
tion of  such  jurisdiction  in  other  cases ;  and  the  repeal  of  the 
act  necessarily  negatives  jurisdiction  under  it  of  those  cases 
also.^ 

§  328.  An  express  exception,  exemption  or  saving  excludes 
others.^  Where  a  general  rule  has  been  established  by  stat- 
ute with  exceptions  the  court  will  not  curtail  the  former  nor 
add  to  the  latter  by  implication.^    Exceptions  strengthen  the 

1  Pursell  V.  New  York  Life  Ins.  etc.  6  Ham  v.  Steamboat  Hamburg,  2 
Co.  42  N.  Y.  Super.  Ct.  383,  397.  Iowa,  460 ;  Scovern  v.  State,  6  Oliio  St 

2  State  V.  Morrow,  26  Mo.  131,  141 ;    288. 

Crosby  v.  Patch,  18  Cal.  438.  ^McCardle,  Ex  parte,  7  WaU.  506. 

"  Burnliam  v.  Onderdonk,  41  N.  Y.  See  Yerger,  Ex  parte,  8  id.  85. 

425.  8  See  Reg.  v.  Mallow  Union,  12  Ir. 

4  Patterson  v.  Tatum,  3  Sawyer,  164.  C.  L.  (N.  S.)  40. 

6Wight V.Warner,  1  Doug.  (Mich.)  9Robei-ts  v.  Yarboro,  41   Tex.  452; 

38-i :  Beach  v.  Botsf  ord,  id.  199 ;  Clark  Wallace  v.  Stevens,  74  id.  559. 
V.  Holmes,  id.  390 ;  Reynolds  v.  Orvis, 
7  Cow.  269. 


INTEKPKETATION    AND   CONSTRUCTION.  4:1  S 

force  of  a  general  law,  and  enumeration  weakens  it  as  to  things 
not  expressed.^  Power  of  eminent  domain  was  granted  to  a> 
railroad  company  to  enter  on  land  and  a|)propriate  as  much  of 
it,  "  except  timber,"  as  might  be  necessary  for  its  purposes. 
"  Why  an  exception,"  asked  Gibson,  C.  J.,  "  if  the  word  land 
was  not  supposed  to  embrace  everything  else?  The  expres- 
sion of  one  thing  is  the  exclusion  of  another ;  and  consequently 
no  further  exception  was  intended."  ^  A  statute  declared  that 
"all  offices,  posts  of  profit,  professions,  trades  and  occupa- 
tions, except  the  occupation  of  farmers,"  "  shall  be  valued  and 
assessed  and  subject  to  taxation ; "  it  was  held  that  the  excep- 
tion of  farmers  excluded  any  other,  and  that  the  calling  of  a 
minister  of  the  gospel  was  a  "  profession  "  and  taxable.^  Cer- 
tain exemptions  from  distress  for  taxes  being  expressed  in  a 
statute,  by  fair  imphcation  all  other  property  is  liable.*  When 
by  a  declaratory  provision  the  legislature  enact  that  a  thing 
may  be  done  which  before  that  time  was  lawful,  and  adds  a 
proviso  that  nothing  therein  shall  be  so  construed  as  to  per- 
mit some  matter  embraced  in  the  general  provision  to  be  done, 
this  is  an  implied  prohibition  of  such  act,  though  before  that 
time  it  was  lawful.'^ 

§  329.  The  maxim  does  not  apply  to  a  statute  the  language 
of  which  may  fairl}^  comprehend  many  different  cases,  in  which 
some  only  are  expressly  mentioned  by  way  of  example  merely, 
and  not  as  excluding  others  of  a  similar  nature.  So  where  the 
words  used  by  the  legislature  are  general  and  the  statute  is 
only  declaratory  of  the  common  law,  it  will  extend  to  other 
persons  and  things  besides  those  actually  named.^  If  there  is 
some  special  reason  for  mentioning  one,  and  none  for  men- 
tionins:  a  second  which  is  otherwise  within  the  statute,  the 
absence  of  any  mention  of  the  latter  will  not  exclude  it.'  The 
specification  in  the  statute  that  either  of  certain  acts  shall  be 
taken  as  an  appearance  does  nob  exclude  other  methods  of 
appearing  which  have  that  effect  on  general  principles  of  th& 

1  Page  V.  AUen,  58  Pa.  St.  338 ;  <  Sherwin  v.  Bugbee,  16  Vt  439^ 
Countess     of    Rothes    v.   Kirkcaldy    445. 

Water-works  Com'rs,  L.  R  7  Ap.  706.  5  state  v.  Eskridge,  1  Swan,  413. 

2  Brocket  v.  Ohio,  etc.  R  R  Co.  14  <*  Broom's  Max.  664 ;  Scaggs  v.  Bal- 
Pa.  St  241,  243.  timore,  etc.  R  R  Co.  10  Md.  268. 

3  ]\Iiller  V,  Kii-kpatrick,  29  Pa.  St.  '  Brown  v.  Buzan,  24  Ind.  194. 
226,  229, 


416  INTERPRETATION   AND    CONSTRUCTION. 

common  law.^  The  mention  of  one  tiling  is  not  exclusive  when 
the  context  shows  a  different  intention.^  The  enactment  of  a 
law  does  not  raise  a  presumption  that  it  did  not  exist  before.* 
If  it  be  an  explicit  pro^dsion  on  a  given  subject  it  does  not  of 
itself  prove  that  the  law  was  different  before ;  it  may  have 
been  made  in  affirmance  of  the  existing  law  and  to  remove 
doubts.^ 

§  330.  Presiiniptious. —  A  legal  presumption  is  sometimes 
conclusive ;  then  no  argument  or  consideration  can  be  adduced 
to  overturn  it.  Other  presumptions  are  rebuttable,  and  good 
onl}^  until  overthrown.  A  presumption  therefore  rests  upon 
a  matter  treated  as  absolutely  true  by  expedient  assumption, 
or  as  probably  true.  The  former  is  taken  to  be  true  because 
there  is  the  highest  and  best  evidence  of  it,  and  it  is  for  the 
pubhc  convenience  and  security  that  its  verity  should  be  abso- 
lutely assumed.  Other  matters  are  presumptively  true,  but 
open  to  question ;  so  that  whoever  claims  contraiy  to  it  has 
the  burden  of  argument,  as  against  a  presumption  of  fact  he 
would  have  the  burden  of  proof.  A  statute  properly  authen- 
ticated in  the  proper  office  is  conclusively  presumed  to  be  duly 
enacted,^  except  where  b}^  the  fundamental  law  a  question  may 
be  raised  on  extraneous  evidence ;  ^  that  it  is  enacted  from  good 
motives,  and  no  issue  to  the  contrary  is  permitted.'^  ISTo  issue 
of  fact  will  be  tried  as  to  the  motives  of  legislators  voting  for 
a  law,  nor  to  impeach  it  on  the  grounds  of  fraud  or  corrup- 
tion, either  at  the  suit  of  a  private  person  or  the  state.^    !N"or 

1  Curtis  V.  McCuUough,  3  Nev.  203.  1  Wright   v.  Defrees,   8    Ind.   298 ; 

2  Mayor  v.  Davis,  6  Watts  &  S.  People  v.  Sliepard,  36  N.  Y.  285 ;  New- 
269,  278-9.  man.  Ex  parte,  9  Cal.  502. 

3  Nunnally  v.  Wliite,  3  Met.  (Ky.)  » McCuUoch  v.  State,  11  Ind  424, 
584.  430-1;   Fletcher  v.  Peck,  6  Cr.  87; 

^Montville  v.  Haughton,  7  Conn.  Ex    parte    McCardle,   7    Wall   506; 

543.  Flint,  etc.  Co.  v.  Woodhull,  25  ]VIich. 

5  Kilgore  v.  INIagee,  85  Pa.  St.  401 ;  99 ;  Kountze  v.  Omaha,  5  Dill  443 ; 
GildeweU  v.  Martin,  US.  W.  Rep.  State  v.  Hays,  49  Mo.  604;  People  v. 
882 ;  51  Ark.  559 ;  State  v.  Algood,  10  Bigler,  5  Cal.  23 ;  Ex  parte  Newman,  9 
S.  W.  Rep.  310;  87  Tenn.  163;  Terri-  id.  502;  Harpending  v.  Haight,  39 
tory  V.  O'Connor,  41  N.  W.  Rep.  746 ;  id.  189 ;  Slack  v.  Jacob,  8  W.  Va, 
State  V.  Robertson,  41  Kan.  200 ;  S.  C.  612 ;  Mayor,  etc.  v.  State,  15  Md.  876 ; 
21  Pac.  Rep.  382 ;  People  v.  Dunn,  80  Johnson  v.  Higgms,  3  Mete.  (Ky.) 
Cal.  211.  566 ;  People  v.  Draper,  15  N.  Y.  532 ; 

6  Ante,  §§  28-41 ;  People  v.  McEl-  State  v.  Fagan,  22  La.  Ann.  545 ; 
roy,  40  N.  W.  Rep.  750.  State  v.  Cordoza,  5  S.  C.  297 ;  Hum- 


INTERPRETATION   AND    CONSTRUCTION.  417 

is  the  policy,  moral  justice  or  expediency  of  a  statute  to  be 
considered  by  the  judiciary  in  determining  its  validity.' 

§  331.  It  is  not  to  be  presumed  that  the  legislature  have 
assumed  the  existence  of  a  fact  upon  which  an  act  of  legisla- 
tion is  based,  without  evidence.  On  the  contrary,  courts  are 
bound  to  presume  that  they  acted  upon  good  and  sufficient 
evidence,  and  that  presumption  is  conclusive  on  the  question 
of  the  validity  of  the  act.  It  was  so  held  on  an  objection  to 
the  validity  of  an  act  organizing  a  ncAV  county,  that  it  did  not 
contain  the  population  required  by  the  constitution.^  It  is 
presumed,  as  well  on  the  ground  of  good  faith  as  on  the 
ground  that  the  legislature  would  not  do  a  vain  thing,  that  it 
intends  its  acts  and  every  part  of  them  to  be  valid  and  capable 
of  beinff  carried  into  effect.  If  a  statute,  however,  is  uncon- 
stitutional  it  is  void,  and  the  courts  have  power  to  treat  it  as 
a  nullity,  and  will  do  so,  or  such  parts  as  are  in  contravention 
of  the  fundamental  law.^  But  until  it  is  show^n  to  be  plainly 
and  manifestly  in  conflict  with  the  constitution  the  presumjv 
tion  of  its  validity  wiU  hold  good ;  aU  doubts  will  be  resolved 
in  its  favor.  Every  presumption  is  in  favor  of  the  validity  of 
legislative  acts,  and  they  are  to  be  upheld  unless  there  is  a 
substantial  departure  from  the  organic  law.*    "Where  there  is 

boldt  Co.  V.  Churchill  Co.  6  Nev.  30 ;  &  North  Ala,  R  R  Co.  v.  Morris,  65 

Doyle  V.  Continental  Ins.  Co.  94  U.  S.  Ala.  193 ;  People  v.  Bull,  46  N.  Y.  68 ; 

535;  Wright  v.  Defrees,  8  Ind  298;  Sadler  t.  Langham,  34  Ala,  311 ;  State 

Sunbury,  etc  R  Co.  v.  Cooper,  33  v.  Dombaugh,  20  Ohio  St  173 ;  Zeig- 

Pa,  St  278.  ler  v.  South,  etc.  R  R  Co.   58  Ala. 

1  Brewer  v.  Blougher,  14  Pet  198.  594 ;  Commonwealth  v.  Hitcliings,  5 

See  Richardson  v.  CrandaU,  48  N.  Y.  Gray,  485 ;  Newsom  v.  Cocke.  44  Miss. 

356.  353;  People  v.   Comstock,  78  N.  Y. 

2DeCamp  V.  Eveland,  19Barb.  81;  356;    Louisville,   etc.    R    R   Co.   v. 

Farmers',  etc.  Co.  v.  Chicago,  etc.  R  County  Ct  1  Sneed,  637 ;  S.  C.  62  Am. 

R  Co.  39  Fed,  Eep.  143.  Dec.  424 ;  Cline  v.  Greenwood,  10  Ore- 

3  Winter  v.  Jones,  10  Ga.  190.  gon,  230 ;  Opinion  of  Justices,  22  Pick. 

*  People  V.  Briggs,  50  N.  Y.  553;  at  p.  573;  Bailey  v.  Commonwealth,  11 

Winter  v.  Montgomery,  65  Ala.  403 ;  Bush,  at  p.  691 ;  Cutts  v.  Hardee,  38 

Slack  V.  Jacob,  8  W.  Va.  626 ;  Gal-  Ga,  350 ;  People  t.  San  Francisco,  etc. 

veston,  etc.  R  R  Co.  v.  Gross,  47  Tex.  R  R  Co.  35  Cal.  606 ;  Commissioners  v. 


428 ;  State  v.  Sorrells.  15  Ark.  664 
Griffin,  In  re,  25  Tex.  (Supl't)  623 
Commissioners  v.  Ballard,  69  N.  C.  18 
Edwai-ds  v.  Williamson,  70  Ala.  145 


Silvers,  22  Ind.  491 ;  Morrison  v. 
Springer.  15  Iowa,  304;  Hartford 
Bridge  Co.  v.  Union  Ferry  Co.  29  Conn. 
210 ;  Inkster  v.  Carver,  16  Mich.  484 ; 


<5uartebaum  v.  State,  79  id.  1 ;  South    State  v.  Cooper,  5  Blackf .  258 ;  Santo  v. 
27 


418  INTERPRETATION   AND   CONSTRUCTION. 

not  in  tlie  law  an  express  limitation  to  the  power  to  do  a  cer- 
tain thing,  an  inference  cannot  be  made  or  sustained  which 
wiU  defeat  the  object  of  the  law.^  "  Before  determining," 
said  Lumpkin,  J.,  "  that  the  constitution  has  been  plainly  and 
palpably  infi-acted,  incautiously  or  otherwise,  by  a  co-ordinate 
branch  of  the  government,  the  best  energies  of  our  minds 
should  be  employed  in  putting  such  construction  upon  it  as 
to  uphold  it,  if  possible,  and  carry  it  into  effect,  ut  res  magis 
valeat  quam  pereat^  ^ 

§  332.  It  is  a  cardinal  rule  that  all  statutes  are  to  be  so  con- 
strued as  to  sustain  rather  than  ignore  or  defeat  them ;  to  give 
them  operation,  if  the  language  will  permit,  instead  of  treating 
them  as  meaningless :  ut  res  wagis  valeat,  quam  pereat?  When- 
ever an  act  can  be  so  construed  and  applied  as  to  avoid  con- 
flict with  the  constitution,  and  give  it  the  force  of  law,  this 
will  be  done.*  Where  one  construction  will  make  a  statute 
void  for  conflict  with  the  constitution,  and  another  would 
render  it  valid,  the  latter  will  be  adopted  though  the  former 
at  first  view  is  otherwise  the  more  natural  interpretation  of 
the  language.^  Every  intendment  should  be  made  to  favor  the 
constitutionality  of  a  statute.    A  provision  as  to  officers'  fees 

State,  2  Iowa,  165 ;  State  v.  Robinson,  1  13  S.  C.  355 ;  Tabor  v.  Cook,  15  Mich. 

Kan.  17 ;  Brown  v.  Buzan,  24  Ind.  194 ;  322 ;  Grand  River  B.  Co.  v.  Jarvis,  30 

Tyler  v.  People,  8  Mch.  320 ;  Mayor,  Mich.  308 ;  Robinson  v.  State,  15  Tex. 

etc.  V.  State,  15  Md.  376 ;  Rich  v.  Flan-  311 ;  Roosevelt  v.  Godard,  52  Barb. 

ders,  39  N.  H.   304 ;  Speer  v.  School  533 ;  Ogden  v.  Saunders,  12  Wheat 

Durectors,  50  Pa.  St.    150 ;   Neal  v.  270 ;  Speer  v.  School  Directors,  50  Pa. 

Roberts,  1  Dev.  &  Batt.  L.  81 ;  Deering  St.  150 ;  Brown  v.  Bixzan,  24  Ind.  194 ; 

V.  York,  etc.  R.  R.  Co.  31  Me.  172.  State  v.  Intoxicating  Liquors,  19  Atl. 

1  Cook  V.  Com'rs,  6  McLean,  112.  Rep.  913 ;  New  Orleans  v.  Salamander 

2  Winter  v,  Jones,  10  Ga.  190.  Ins.   Co.  25  La.  Ann.  650 ;  State  v. 

3  Howard  Association's  Appeal,  70  Fields,  2  Bailey,  554 ;  Winter  v.  Jones, 
Pa.  St.  344.  10  Ga.  190 ;  Read  v.  Levy,  30  Tex.  738. 

*  Newland  v.  Marsh,   19  HL    376 ;  A  law  passed  when  it  conflicted  with 

Roosevelt  v.  Godard,  52  Barb.  533 ;  the  constitution  in  force,  but  in  an- 

ColweU  v.  May,  etc.  Co.  19  N.  J.  Eq.  ticipation  of  the  adoption  of  a  new 

245.  constitution  wliich  had  been  prepared 

5Slackv,  Jacobs,  8  W.Va,  612;  New-  and  was  awaiting  the  vote  for  its 
land  V,  Marsh,  19  IlL  384 ;  Bridges  v.  adoption-  It,  being  in  accord  with 
Shallcross,  6  W.  Va.  574 ;  Marshall  v.  the  new  constitution  which  was  sub- 
Grimes,  41  Miss.  27 ;  Eyre  v.  Jacob,  sequently  adopted,  was  held  vahd. 
14  Gratt  422 ;  Commonwealth  v.  Galveston,  etc.  R  R.  Co.  v.  Gross,  47 
Gaines,  2  Va.  Cas.  172 ;  Bull  v.  Rowe,  Tex.  428. 


INTERPRETATION   AND    CONSTRUCTION.  419 

should  be  construed  as  appljing  onl}-  to  future  officers  rather 
than  that  the  act  should  be  set  aside  as  infringing  a  prohibition 
of  any  law  increasing  fees  of  officers  during  their  term  of  office.' 
When  the  language  of  a  statute  is  clear  and  unambiguous  a 
meaning  different  from  that  which  the  words  plainly  imply 
cannot  be  judicially  sanctioned.  Even  when  a  court  is  con- 
vinced, from  considerations  outside  of  the  language  of  the 
statute,  that  the  legislature  really  meant  and  intended  some- 
thing not  expressed  by  the  phraseology  of  the  act,  it  will  not 
deem  itself  authorized  to  depart  from  the  plain  meaning  of 
language  which  is  free  fi'om  ambiguity.^  The  correct  rule  of 
construction  undoubtedly  is,  that  wher6  a  law  is  clearly  ex- 
pressed the  court  should  adhere  to  the  literal  expression  with- 
out regard  to  consequences ;  then  every  construction  derived 
from  a  consideration  of  its  reason  and  spirit  should  be  dis- 
carded.'' It  is  nevertheless  presumed  that  the  legislature 
do  not  intend  absurdity,  inconvenience  or  injustice.  While 
courts  are  not  at  liberty  to  set  aside  a  statutory  provision  on 
this  presumption,  where  the  intention  is  plain  and  unmis- 
takable, they  will  presume,  when  the  words  are  not  precise 
and  clear,  that  some  exception  or  qualification  was  intended 
to  avoid  such  consequences;  and  such  construction  will  be 
adopted  as  appears  most  reasonable  and  best  suited  to  accom- 
plish the  objects  of  the  statute.* 

§  333.  It  is  presumed  that  the  legislature  is  acquainted  with 
the  law ;  that  it  has  a  knowledge  of  the  state  of  it  upon  the 
subjects  upon  which  it  legislates ;  ^  that  it  is  informed  of  previ- 
ous legislation  ^  and  the  construction  it  has  received.''  It  nec- 
essarily results  from  the  rules  of  construction  with  reference 

1  Kerrigan  v.  Force,  68  N.  Y.  381.  Cook,  60  Wis.  133 ;   Philadelphia  v. 

2  Smith  V.  State,  66  Md.  315 ;  Wood-  Ridge  Ave.  R'y  Co.  102  Pa.  St  190, 196. 
bury  V.  Berry.  18  Ohio  St.  456 ;  Brad-  »  Reg.  v.  Watford„9  Q.  B.  at  p.  635 ; 
bury  V.  Wagenhorst,  54  Pa.  St  180.  Jones  v.  Brown,  2  Ex.  332 ;  Phelan  v. 

3  Bennett  v.  Worthington,  24  Ark.  Johnson,  7  Ir.  L.  at  p.  535. 

487 ;  Sneed  v.  Commonwealth,  6  Dana,  ^  Bradbury  v.  Wagenhorst  54  Pa. 

338.  St  180, 182 ;  Tuxbury's  Appeal,  67  Me. 

♦Commonwealth   v.    Kimball,    24  267;  Howard   Association's  Appeal, 

Pick.  366,  370 ;   Perry  County  v.  Jef-  70  Pa.  St  344. 

ferson  Co.  94  IlL   214,   220;    United  "O'Bymes  v.  State,  51  Ala.  25,  27; 

States  V.  Kirby.  7  Wall  486 ;  Gates  v.  Banks,  Ex  parte,  28  id.  28 ;  Bloodgood 

National  Bank,  100  U.  S.  239 ;   Foley  v.  Grasey,  31  id-  575. 
V.  Bom-g,  10  La.  Ann.  129 ;  Gilkey  v. 


420  INTERPRETATION   AND   CONSTRUCTION. 

to  the  common  law  that  the  legislature  is  presumed  to  be  fa- 
miliar with  it.^  It  has  been  held  that  the  legislature  is  pre- 
sumed to  know  the  existence  of  the  difference  between  the 
practice  in  bankruptcy  and  the  practice  in  chancery ;  that  the 
onus  is  clearly  thrown  on  those  who  assert  the  contrary.-  It 
has  been  suggested  that  this  is  more  an  expedient  conclusion 
than  a  presumption  of  fact.^  A  judicial  construction  of  a 
statute  of  long  standing  has  force  as  a  precedent  from  the 
presumption  that  the  legislature  is  aware  of  it,  and  its  silence 
a  tacit  admission  that  such  construction  is  correct/  The  re- 
enactment  of  a  statute  after  a  judicial  construction  of  its 
meaning  is  to  be  regarded  as  a  legislative  adoption  of  the  stat- 
ute as  thus  construed.^  So,  where  the  terms  of  a  statute 
which  has  received  a  judicial  construction  are  used  in  a  later 
statute,  whether  passed  by  the  legislature  of  the  same  state  or 
country,  or  by  that  of  another,  that  construction  is  to  be  given 
to  the  later  statute ;  ^  for  if  it  were  intended  to  exclude  any 
known  construction  of  a  previous  statute,  the  legal  presump- 
tion is  that  its  terms  would  be  so  changed  as  to  effectuate  that 
intention.^ 

It  is  presumed  that  the  legislature  does  not  intend  to  make 
any  change  in  the  existing  law  beyond  what  is  expressly  de- 
clared,^ Hence  repeals  by  implication  are  recognized  only 
when  there  is  an  unavoidable  contradiction.**  And  for  a  like 
reason  statu,tes  in  derogation  of  the  common  law  are  strictly 

1  See  Jones  v.  Dexter,  8  Fla  276,  O'Byrnes  v.  State,  51  Ala.  25 ;  Tom- 

286.  son  V.  Ward,  1  N.  H.  9 ;  Mooers  v. 

2Kellock's  Case,  L.  E.  3  Ch.  at  pp.  Bunker,  29  N.  H.  420 ;  Frink  v.  Pond, 

781,  782.  46  id.  125 ;  Hakes  v.  Peck,  30  How.  Pr. 

3  Wilb.  on  St.  13.  104;  Bank  of  Mobile  v.  Meagher,  33 

*  Phelan  v,  Johnson,  supra.  Ala.  622 ;  Ee  Murphy,  23  N.  J.  L.  180 ; 

6Cota  V.   Eoss,   66  Me.   161;  Tux-  Matthews,    Ex    parte,    52    Ala.   51; 

bury's  Appeal,  67  Me.  267.  Knight  v.  Freeholders  of  Ocean  Co. 

6  Commonwealth    v.    Hartnett,    3  10  Cent.  Eep.  653 ;  49  N.  J.  L.  485 ; 

Gray,  450.  State  v.  Swope,  7  Ind.  91 ;  La  Sella 

'  Id. ;  6  Dane  Abr.  613 ;  Kirkpatrick  v.  \Vhitfield,   12  La.  Ann.  81 ;   Gould 

V.  Gibson's  Ex'r,  2  Brock.  388 ;  Pen-  v.  Wise,  18  Nev.  253 ;  McKenzie  v. 

nock  V.  Dialogue,  2  Pet.  18;  Adams  State,  11  Ark.  594. 
V.   Field,  21  Vt.   266 ;  Whitcomb  v.        8  Graham  v.  Van  Wyck,  14  Barb. 

Rood,  20  id.  52 ;  Eutland  v.  Mendon,  531. 
1  Pick.  154 ;  Myrick  v.  Hasey,  27  Me.        »  Ante,  §  138. 
17;  The  Abbotsford,   98  U.   S.  440; 


INTERPRETATION   AND   CONSTRUCTION. 


421 


construed  unless  controlled  by  some  other  rule  of  construc- 
tion.' It  is  presumed,  in  the  construction  of  general  words  or 
dubious  provisions,  that  there  is  no  intention  to  depart  from 
any  established  policy  of  the  law ;  ^  to  innovate  upon  funda- 
mental principles ;  ^  nor  to  oust  the  jurisdiction  of  the  superior 
courts/  or  establish  new  jurisdictions,  especially  exclusive  ju- 
risdictions.* There  is  also  a  presumption  against  any  inten- 
tion to  surrender  public  rights,^  or  to  affect  the  government^ 
The  legislature  is  presumed  to  intend,  except  as  the  statute 
otherwise  provides,  that  enactments  be  construed  by  the  com- 
mon law,  and  enforced  according  to  its  procedure.^  When 
courts  are  empowered  to  render  judgments  or  give  rehef  in  a 
particular  class  of  cases  as  they  shall  deem  just,  or  according 
to  their  discretion,  this  power  is  expounded  and  limited  by 
the  principles  of  the  common  law ;  it  is  legal  justice  they  are 
to  administer,  a  legal  discretion  they  are  to  exercise ;  ®  so  when 
any  special  duties  are  imposed  or  new  jurisdiction  granted. 
"  Wherever  such  discretionary  authority,"  said  Woodward, 
P.  J.,  "  is  conferred  upon  them  in  reference  to  subjects  outside 
of  their  peculiar  duties,  it  is  always  presumed  by  the  legisla- 


1  Post,  §  400. 

2Minet  v.  Leman,  20  Beav.  at  p. 
278.  See  Overseei-s  v.  Smith,  2  S.  & 
R  363 ;  Small  v.  Small,  18  AtL  Rep. 
497. 

3  Ante,  %  395. 

*  Post,  g  400. 

*  Hersom's  Case,  39  Me.  476 ;  Custer 
Co.  V.  Yellowstone  Co.  6  Mont  39; 
Pitman  v.  Flint,  10  Pick.  504. 

•>  State  V.  Kinne,  41  N.  H.  238; 
Jersey  City  v.  Hudson,  13  N.  J.  Eq. 
430 ;  Harrison  v.  Yoimg,  9  Ga.  359 ; 
Bennett  v.  The  Auditor,  2  W.  Va. 
441. 

T  Willion  V.  Berkley,  1  Plowd.  236 ; 
Attorney-General  v.  Donaldson,  10 
]VL  &  W.  117  ;  Huggins  v.  Bambridge, 
Willes,  241 ;  Alexander  v.  State,  56 
Ga,  478 ;  Rex  v.  Wright,  1  Ad.  &  EL 
437 ;  United  States  v.  Greene,  4  Mason, 
427 ;  United  States  v.  Hewes.  Crabbe, 
307 ;  United  States  v.  Hoar,  2  Mason. 
311 ;  Jones  v.  Tatham,  20  Pa,  St  398 ; 


Cole  V.  Wliite  Co.  32  Ark.  45 ;  Stough- 
ton  V.  Baker,  4  Mass.  522 ;  State  v.  Mil- 
bm-n,  9  Gill,  105 ;  Martin  v.  State,  24 
Tex.  61 ;  State  v.  Garland,  7  Ired.  L. 
48:  State  v.  Kinne,  41  N.  H.  238; 
Green  v.  United  States,  9  WalL  655. 

8  Booth  V.  Kitchen,  7  Him,  260,  264 ; 
Colbum  V.  Swett,  1  Met  232 ;  Elder 
V.  Bemis,  2  id.  599 ;  State  v.  Fletcher, 
5  N.  H.  257 ;  Gearhart  v.  Dixon,  1 
Pa,  St  224 ;  State  v.  Parker,  91  N.  C. 
650 :  Graffins  v.  Commonwealth,  3 
Pen.  &  W.  502;  Edge  v.  Common- 
wealth, 7  Pa.  St  275;  Philhps  v. 
Commonwealth,  44  id.  197;  Com- 
monwealth T.  Reiter,  78  id.  161 ;  Oak- 
land T'p  V.  Martin,  104  id.  303 ;  "Wood 
Mowing  M.  Co.  v.  Caldwell,  54  Ind. 
270,  276. 

a  Ex  parte  Bamett  L.  R.  4  Ck  351 ; 
Stevens  v.  Ross,  1  Cal.  94;  Lash  v. 
Von  Neida,  109  Pa,  St  207 ;  Doherty 
V.  AUman,  L.  R  3  App.  Cas.  709,  728. 


422  INTEKPEETATION   AND   CONS""^UCTION. 

tnre  that  it  will  be  exercised  in  accordance  with  judicial 
usages,  and  upon  uniform  and  established  rules.  The  safety 
of  the  community,  as  well  as  the  usefulness  and  independence 
of  the  judiciary,  absolutely  demands  that  all  the  duties  of  the 
court  shall  be  defined  either  by  statute  or  by  practice."  *  And 
when  a  discretionary  power  is  granted  to  an  officer  or  special 
tribunal,  it  is  intended  and  presumed  to  be  a  reasonable  dis- 
cretion. As  Lord  Denman  said,  "  not  a  wild  but  a  sound  dis- 
cretion, and  to  be  confined  within  those  limits  within  which 
an  honest  man,  competent  to  discharge  the  duties  of  his  office, 
ought  to  confine  himself."  * 

§  334.  Implications  and  incidents. —  Statutes  are  not,  and 
cannot  be,  framed  to  express  in  words  their  entire  meaning. 
They  are  framed  like  other  compositions  to  be  interpreted  by 
the  common  learning  of  those  to  whom  they  are  addressed ; 
especially  by  the  common  law,  in  which  it  becomes  at  once  en- 
veloped, and  which  interprets  its  implications  and  defines  its 
incidental  consequences.  That  which  is  implied  in  a  statute 
is  as  much  a  part  of  it  as  what  is  expressed;^  In  case  of  a 
newly  created  felony  it  must  necessarily  possess  all  the  inci- 
dents which  appertain  to  felony  by  the  rules  and  principles 
of  the  common  law ;  therefore,  by  necessary  implication,  all 
the  procurers  and  abettors  of  it  are  principals  or  accessories, 
upon  the  same  circumstances  which  will  make  such  in  a  felony 
by  the  common  law.^  The  same  peremptory  challenges  are 
allowed.^  Where  a  common-law  offense  has  been  adopted  by 
statute  it  is  adopted  with  all  its  common-law  elements,  and  in 
an  indictment  for  such  an  offense  all  the  common-law  require- 
ments must  be  observed,®  A  statute  of  New  York  legalized 
all  marriages  where  one  or  both  of  the  parties  were  slaves  and 
declared  their  issue  legitimate.     By  a  proviso  it  was  not  to 

1  Re  Report  of  Coirnty  Auditors,  1  Haight  v.  Holley,  3  Wend.  258 ; 
"Woodw.  (Pa.)  270,  272.  See  Seely  v.  Rogers  v.  Kneeland,  10  Wend.  218 ; 
State,  11  Ohio,  501 ;  12  id.  496.  Fox  v.  Phelps,  20  Wend.  447 ;  United 

2  Wilson  V.  Rastall,  4  T.  R  757 ;  States  v.  Babbit,  1  Black,  55,  61. 
Andrews  v.  King,  77  Me.  224 ;  Ham  *  Coalheavers'  Case,  1  Leach,  C.  C. 
V.  Board  of  Police,  142  Mass.  90 ;  Reg.  64,  66. 

V.  Sykes,  L.  R.  1  Q.  B.  Div.  52;  Smith,  ^Gray  v.  Reg.  11  CI.  &  Fin.  427, 

Ex  parte,  3  id.  874.  460. 

s  Hanchett  v.  Weber,  1 7  lU.  App.  1 14,  «  State  v.  Absence,  4  Porter,  C97. 

117 ;  Koning  v.  Bayard,  2  Paine,  251 ;  ' 


INTERPRETATION   AND    CONSTRUCTION.  423 

operate  as  an  emancipation.  The  rule  was  recognized  that 
when  both  the  parents  were  slaves  the  children  would  follow 
the  condition  of  the  mother,  and  it  was  held  that  a  fortiori 
it  ought  to  be  so  where  the  mother  is  free  and  the  father  a 
slave.  It  was  held  that  the  general  laAv  of  laron  and  feme  did 
not  apply ;  by  such  a  marriage  Sifree  wife  was  not  subject  to 
the  custody  and  control  of  a  slave  husband ;  the  husband  was 
not  emancipated  nor  the  wife  enslaved  by  such  a  marriage ; 
that  the  condition  of  the  children  of  such  a  marriage  followed 
the  condition  of  the  mother.'  A  statute  gave  a  right  of  ac- 
tion on  the  sheriff's  official  bond  to  any  person  aggrieved  by 
his  misconduct  or  that  of  his  deputy.  The  requisite  proof 
being  made,  the  law  which  furnished  this  remedy  supphes  the 
necessary  privity  by  giving  the  right  of  action.^ 

§  335.  The  law  annexes  by  implication  the  incident  to  all 
public  laws  that  they  be  noticed  ex  officio  by  the  courts.'  But 
private  statutes  will  not  be  so  taken  notice  of;*  statutes  ap- 
plying to  private  rights  do  not  affect  the  crown  or  govern- 
ment.^ "Where  a  statute,  with  a  view  of  affording  protection 
to  the  public,  imposes  a  penalty  for  doing  an  act,  it  thereby 
prohibits  it  and  renders  it  illegal.^  Thus,  a  statute  which  im- 
poses a  penalty  on  a  person  who  exercises  or  occupies  himself 
as  a  surgeon  without  being  licensed,  is  a  prohibition  of  such 
practice,  as  it  disables  the  person  not  admitted  to  recover  for 
services  as  a  surgeon.^ 

§  336.  Every  contract  made  for  or  about  any  matter  or 
thing  which  is  prohibited  or  made  unlawful  by  statute  is  void, 
though  the  statute  does  not  mention  that  it  shall  be  so,  but 

1  Overseers,  etc.  v.  Overseers,  etc.  20  pressly  named.  Bac.  Abr.  Stat  I.  C. ; 
John.  1,  3.  Gladney  v.  Deavors,  11  Ga.  79. 

2  Governor  v.  Roby,  34  Ga,  176.  *  D'Allex  v.  Jones,  2  Jiir.  (N.  S.)  979 ; 
^Ante,  §§  191,  293 ;  2  Kent's  Com.    Bartlet  v.  Yiner,  Skin.  322 :  O'Brien  v. 

460.  Dillon,  9  Ir.  C.  L.  (N.  S.)  318 ;  Stephens 
4  Id. ;  Dwarris,  471.  v.  Robinson,  2  Cromp.  &  J.  209 ;  Cope 
»  United  States  v,  Hewes,  Crabbe,  v.  Rowlands.  2  M.  &  W.  149. 
307 ;  Jones  v.  Tatham,  20  Pa.  St  398 :        ^  D'Allex  v.  Jones.  2  Jur.  (N.  S.)  979 
Divine  v.  Harvie,  7  T.  B.  Mon.  443.  Niemeyer    v.   ^Vright,    75    Va.  239 
The  state  is  boimd  by  public  laws  for  Bensley  v.  Bignold.  5  B.  &  Aid.  335 
*he  promotion  of  learning,  the  ad-  The    Pioneer.    Deady,    72;    Holt    v. 
vancement  of  religion,  and  the  sup-  Green.  73  Pa.  St  198 ;  Taylor  v.  Crow- 
port  of  the  poor,  although  not  ex-  land  Gas.  Co.  10  Ex.  293. 


424 


INTERPKETATION   AND    CONSTRUCTION. 


only  inflicts  a  penalty  upon  the  offender.^  Obedience  to  the 
laws  is  enforced  by  declaring  illegal  contracts  void ;  by  refus- 
ino-  to  aid  either  party  in  the  enforcement  of  them.^  When 
a  statute  is  for  revenue  purposes,  or  is  a  regulation  of  a  traffic 
or  business,  and  not  to  prohibit  it  altogether,  whether  a  con- 
tract which  violates  the  statute  shall  be  treated  as  wholly 
void  will  depend  on  the  intention  expressed  in  the  particular 
statute.  Unless  the  contrary  intention  is  manifest  the  con- 
tract will  be  valid.-^  All  cases  to  which  a  statute  cannot  con- 
stitutionally apply  will  be  excepted  by  necessary  impHcation, 
however  absolute  and  express  the  provision  may  be.*  A 
necessary  implication  means  not  natural  necessity,  but  so 
strong  a  probability  of  an  intention  that  one  contrary  to  that 


1  O'Brien  v.  DiUon,  supra;  Grif- 
fith V.  Wells,  3  Denio,  226 ;  Bach  v. 
Smith,  2  Wash.  Ty.  145 ;  Bancroft  v. 
Dmnas,  21  Vt.  450 ;  BoutweU  v.  Fos- 
ter, 24  Vt.  485;  Hook  v.  Gray,  6 
Barb.  398 ;  Gray  v.  Hook,  4  N.  Y. 
449;  Tylee  v.  Yates,  3  Barb.  222; 
Barton  v.  Port  J.  etc.  Plk.  R  Co.  17 
Barb.  397 ;  Pennington  v.  Townsend, 
7  Wend.  276 ;  Nellis  v.  Clark,  4  HiU, 
424;  De  Begnis  v.  Armistead,  10 
Biag.  107 ;  Cope  v.  Rowlands,  2  M.  & 
W.  149;  Springfield  Bank  v.  Mer- 
rick, 14  Mass.  322 ;  HaUett  v.  Novion, 
14  John.  273 ;  Seidenbender  v.  Charles, 
4  S.  &  R.  159. 

2  ArmsU-ong  v.  Toler,  11  Wheat  258 ; 
Bloom  V.  Richards,  2  Oliio  St.  387 ; 
Steers  v.  Lasliley,  6  T.  R.  61 ;  Cannan 
V.  Bryce,  3  B.  &  Aid.  179 ;  Aubert  v. 
Maze,  2  B.  &  P.  371 ;  ^tna  Ins.  Co. 
V.  Harvey,  11  Wis.  394 ;  WiUiams  v. 
Cheney,  3  Gray,  215 ;  Jones  v.  Smith, 
id.  500 ;  Towle  v.  Larrabee,  26  Me. 
464;  Pattee  v.  Greely,  13  Met.  284; 
Lovejoy  v.  Wliipple,  18  Vt.  379; 
O'Donnell  v.  Sweeney,  5  Ala.  467 ; 
Fennell  v.  Ridler,  5  B.  &  C.  406.  But 
see  Columbus  Ins.  Co.  v.  Walsh,  18 
Mo.  229;  Clark  v.  Middleton,  19  id. 
53. 

3  Harris  v.  Runnells,  12  How.  79 ; 


Tyson  v.  Thomas,  McCleL  &  Y.  119 ; 
Law  V.  Hodson,  11  East,  300 ;  Brook- 
lyn L.  Ins.  Co.  V.  Bledsoe,  52  Ala.  538 ; 
CundeU  v,  Dawson,  4  C.  B.  376 ;  Little 
V.  Poole,  9  B.  &  C.  192 ;  Niemeyer  v. 
Wright,  75  Va.  239 ;  Conley  v.  Sims, 
71  Ga.  161 ;  Johnson  v.  Hudson,  11 
East,  180 ;  Brown  v.  Duncan.  10  B. 
&  C.  93 ;  King  v.  Birmingham,  8  B. 
&  C.  29;  Milford  v.  Worcester,  7 
Mass.  48 ;  Parton  v.  Hervey,  1  Gray, 
119;  Bly  v.  National  Bank,  79  Pa, 
St.  453 ;  Swan  v.  Blair,  3  CL  &  F.  at 
p.  632;  Vioing  v.  Bricker,  14  Ohio 
St.  331 ;  Pangbom  v.  Westlake,  36 
Iowa,  546 ;  Bemis  v.  Becker,  1  Kan. 
226;  Lindsey  v.  Rutherford,  17  B. 
Mon.  245 ;  Sti'ong  v.  Darling,  9  Ohio, 
201 ;  Pratt  v.  Short.  79  N.  Y.  437 ; 
Bailey  v.  Harris.  12  Q.  B.  905 ;  Wat- 
rous  V.  Blah-,  32  Iowa,  58 ;  Fergusson 
V.  Norman,  5  Bing.  N.  C.  76 ;  Fowler 
V.  Scully,  72  Pa  St.  456;  Foster  v. 
Oxford,  etc.  R.  R.  Co.  13  C.  B.  200; 
Chouteau  v.  Allen,  70  Mo.  290 ;  How- 
ell V.  Stewart,  54  id.  400 ;  Babcock 
V.  Goodrich,  47  CaL  488;  United 
States  V.  Martin,  94  U.  S.  400 ;  O'Hai-e 
V.  National  Bank,  77  Pa,  St  96. 

*  Opinion   of   Justices,    41  N.    H. 
553. 


INTERPRKTATION    AND   CONSTEUCTION.  4^& 

which  is  imputed  to  the  party  using  the  language  cannot  bo 
.supposed.^ 

§  ,i'.M.  Wliereverthe  provision  of  a  statute  is  general  every- 
thing which  is  necessary  to  make  such  provision  effectual  is 
sup[)lied  by  the  common  law  -  and  by  implication.  A  grant 
of  lands  from  the  sovereign  authority  of  a  state  to  individuals 
to  be  possessed  and  enjoyed  by  them  in  a  corporate  capacity 
confers  a  right  to  hold  in  that  character.*  A  legislative  grant 
made  to  an  alien  by  necessary  implication  confers  the  right  to 
receive  and  enjoy  without  prejudice  on  account  of  alienage.* 
Trustees,  under  an  act  of  parliament  for  dividing  and  inclos- 
ing a  common,  being  intended  to  continue  and  hold  perma- 
nently, were  thereby  constituted  a  corporation  by  implication.^ 
A  right  to  recover  expenses  incurred  for  the  public  good, 
under  certain  conditions,  was  granted  by  statute  to  the  "  local 
authority"  authorized  to  act  in  the  execution  of  the  statute^ 
it  was  held  the  action  for  that  purpose  might  be  prosecuted 
by  that  collective  statutory  designation,  though  not  made  a 
corporation.^ 

§  338.  A  statute  of  Michigan  "  relative  to  the  rights  of  mar- 
ried women,"  in  brief  and  comprehensive  words,  gave  *o  the 
wife  the  full  and  absolute  control  of  her  real  and  personal  es- 
tate, with  power  to  contract,  sell,  transfer,  mortgage,  convey^ 
devise  and  bequeath  the  same,  in  the  same  manner,  and  with 
the  like  effect,  as  if  she  were  unmarried.  This  statute  had  the 
effect  to  abolish  or  abrogate  the  prospective  estate  by  the 
curtesy.'  A  statute  declaring  that  property  which  accrues  to 
a  married  woman  shall  be  "  owned  and  enjoyed  "  as  her  sep- 
arate property  will  authorize  her,  if  the  property  be  merchan- 
dise, to  trade.  It  is  the  nature  of  merchandise  to  be  sold  and 
exchanged.  When,  therefore,  the  statute  authorizes  married 
women  to  own,  use  and  enjoy  such  property,  it  legalizes  trade 
by  them  —  makes  them  merchants.^  So  she  is  liable  for  repairs 

1  Wilkinson  v.  Adam,  1  Ves.  &  B.  <  Goodell  v.  Jackson,  supra;  Jack- 
4GG ;  State  v.  Union  Bank,  9  Yerg.  164.  son  v.  Lervey,  5  Cow.  397. 

2  6  Bac.  Abr.  369 ;  Booth  v.  Kitchen,  '^Newpoii;  M.  Trustees,  Ex  parte, 
7  Hun.  260,  264 ;  Livingston  v.  Har-  16  Sini.  346. 

ris,  11  Wend  329,  340.  ''Mills  v.  Scott,  L.  R.  8  Q.  B.  496. 

» North  Hempstead  v.  Hempstead,  '  Tong  v.  Marvin,  15  Mich.  60, 

2  Wend.    109;    Goodell  v,  Jackson,  sWieman  v.  Anderson,  42  Pa.  St» 

20  Jolm,  706.  311,  317. 


426  INTERPKETATION   AND   CONSTEUCTION. 

to  her  separate  estate,  made  at  her  request  and  necessary  for 
its  preservation  and  enjoyment.^  The  statute  provides  that 
an}'^  married  woman  might  convey  real  estate  "  in  the  same 
manner,  and  with  the  like  effect,  as  if  she  were  unmarried." 
This  implied  a  repeal  as  to  married  women  and  their  separate 
estates  of  the  general  statute  requiinug  ii  private  examination 
apart  from  their  husbands  upon  their  acknowledgment  of  the 
execution  of  conveyances.-  A  power  given  to  a  married  woman 
to  carry  on  a  trade  or  business  on  her  separate  account  in- 
cludes the  power  to  borrow  money,  and  to  purchase  on  credit 
property,  real  or  personal,  necessary  or  convenient,  for  the 
purpose  of  commencing,  as  well  as  the  power  to  create  debts 
in  the  prosecution  of  the  trade  or  business  after  it  has  been 
estabhshed.^  Where  a  married  woman  who  has  a  separate 
estate  and  carries  on  business  in  relation  thereto,  keeping  a 
bank  account  in  her  own  name,  draws  a  check  upon  such  ac- 
count payable  at  a  future  day,  on  which  she  borrows  money, 
the  law  presumes,  in  the  absence  of  evidence  to  the  contrary, 
that  such  money  was  borrowed  for  the  benefit  of  her  separate 
estate,  and  holds  her  liable  therefor.* 

§  339.  A  statute  of  ISTew  York  gave  an  appeal  to  "  every 
person  who  shall  think  himself  aggrieved  by  any  judgment 
or  order  of  any  justice  or  justices,"  etc.  Where  a  defendant, 
served  with  a  summons  which  was  to  show  cause,  failed  to 
appear  and  judgment  went  against  him  by  default,  it  was 
treated  as  equivalent  to  a  judgment  by  confession,  and  there- 
fore he  was  not  entitled  to  consider  himself  aggrieved  and  to 
appeal.^  An  association  was  granted  the  privilege  of  con- 
structing the  Albany  basin,  and  it  was  made  a  condition  that 
they  should  erect  the  necessary  bridges  for  the  pubhc  accom- 
modation. The  grant  was  construed  to  imply  an  obligation 
to  keep  the  bridges  in  repair.^    A  statute  providing  for  par- 

iLippincott  v.  Hopkins,  57  Pa.  St  Zum   v.  Noedel,    113   Pa.   St   336; 

328 ;  Lippencott  v.  Leeds,  77  id.  420.  Bovard    v.   Kettering,   101    id.    181 ; 

'^  Blood  V.  Hvimphrey,  17  Barb.  660 ;  Morrison  v.  Thistle.  67  Mo.  596. 

Andi-ews  v.  Shaffer,  12  How.  Pr.  441 ;  *  Nash  v.  Mitchell,  8  Hun,  471. 

Yale  v.  Dederer,  18  N.  Y.  271 ;  WUes  s  Adams    v.   Oaks,  20  John.   282 ; 

V.   Peck,   26  id.   47 ;    Richardson    v.  Adams  v.  Foster,  id.  452.  See  Schuster 

Pulver,  63  Barb.  67.  v.  Supervisors,  27  Minn.  253 ;  Vander- 

3  Frecking  v.  RoUand,  53  N.  Y.  422 ;  stolph  v.  Boylan,  50  Mich.  330. 

<::ha,pman  v.  Foster,  6  Allen,  136.  See  «*  People  t.  Cooper,  6  HUl,  516. 


INTEKPKETATION   AND    CONSTRUCTION.  427 

tition  and  requiring  the  plaintiff  in  bis  complaint  to  give  a 
statement  of  all  the  rights  and  titles  of  the  parties,  directed 
service  on  all  the  parties  concerned,  and  the  guardians  of  such 
as  were  minors.  As  it  was  deemed  that  minors  were  not 
competent  to  make  a  statement  of  the  rights  and  titles  of  the 
parties,  it  was  held  that  the  statute  did  not  apply  Avhere  all 
the  owners  were  minors.^ 

§  34:0.  It  is  a  principle  or  truism  that  for  every  wrong  there 
is  afforded  by  the  law  an  appropriate  remed3^  Upon  every 
statute  made  for  the  redress  of  any  injury,  mischief  or  griev- 
ance, an  action  lies  by  the  party  aggrieved,  either  by  the 
express  words  of  the  statute  or  by  implication.-  In  other 
words,  if  a  statute  which  creates  a  right  does  not  indicate  ex- 
pressly the  remedy,  one  is  implied,  and  resort  may  be  had  to 
the  common  law,  or  the  general  method  of  obtaining  rehef 
which  has  displaced  or  supplemented  the  common  law.*  A 
statute  provided  a  penalty  for  the  commission  of  a  fraud,  which 
was  "  to  be  sued  for  in  any  court  of  competent  jurisdiction  for 
the  benefit  of  the  person  or  persons,  etc.,  upon  whom  such 
fraud  shall  be  committed."  It  was  implied  the  suit  should  be 
brought  in  the  name  of  the  defrauded  party.'' 

§  341.  Whenever  a  power  is  given  by  statute,  everything 
necessary  to  make  it  effectual  or  requisite  to  attain  the  end 
is  implied.^  It  is  a  weU  established  principle  that  statutes 
containing  grants  of  power  are  to  be  construed  so  as  to  in- 
clude the  authority  to  do  aU  things  necessary  to  accomplish 
the  object  of  the  grant.**  The  grant  of  an  express  power  car- 
ries with  it  by  necessary  implication  every  other  power  nec- 
essary and  proper  to  the  execution  of  the  power  expressly 

1  Gallatian  v.  Cunningham,  8  Cow.  3  Winn  v.  Ficklen,  54  Ga.  529.  See 
361.  post,  §  399. 

2  Van  Hook  v.  Wliitlock,  2  Edw.  304,  *  Thompson  v.  Howe  46  Barb.  287. 
311 ;  BiiUard  v.  BeU,  1  Mason,  290.  To  5  i  Kent's  Com.  464 ;  Stief  v.  Hart, 
give  a  reasonable  effect  to  the  word  1  N.  Y.  20,  per  Jewett,  C.  J. ;  Mitchell 
"  from  "  in  reference  to  the  subject-  v.  ^Maxwell,  2  Fla.  594 ;  Re  Neagle,  39 
matter,  it  was  held  proper  to  consider  Fed.  Rep.  833;  S.  C.  135  U.  S.  1 ; 
the  extrinsic  situation,  and  if  the  ob-  Commonwealth  v.  Conj-ngham,  66 
ject  of  the  act  could  not  otherwise  be  Pa.  St.  99 ;  AVithei-spoon  v.  Dvmlap,  1 
accomplished  it  should  be  construed  McCord,  546. 

as  inclusive.  Smith  v.  Heimer,  7  "^  People  v.  Eddy,  57  Barb.  593; 
Barb.  416.  Mayor,  etc.  v.  Sands,  105  N.  Y.  210,  218. 


428 


INTERPRETATION   AND   CONSTRUCTION. 


o-ranted.^  Where  the  law  commands  anything  to  be  done  it 
authorizes  the  performance  of  whatever  may  be  Jiecessary  for 
executing  its  commands.^  When  a  justice  of  the  peace  is  re- 
quu-ed  to  issue  a  warrant  for  the  collection  of  costs  made  on 
a  hearing  before  him,  it  is  implied  that  he  has  power  to  decide 
on  the  amount.'  When  an  existing  jurisdiction  is  enlarged  so 
as  to  include  new  cases,  it  is  not  necessary  to  declare  that  the 
old  provisions  shall  apply  to  the  new  cases.  If,  for  example, 
the  jurisdiction  of  justices  of  the  peace  should  be  extended  to 
actions  of  slander,  the  existing  provisions  for  a  review  by  eer- 
tiorari  and  appeal  would  apply  to  cases  coming  under  the  en- 
purposes.  The  latter  may  be  regarded 
as  a  means  or  instrumentality  of  ac- 
complisliing  the  former.  To  secure 
tliis  object  it  is  assumed  to  be  neces- 
saiy  for  the  city  authorities  to  go  be- 
yond the  Umits  of  the  city  to  procure 
the  necessary  supply,  and,  in  doing 
so,  they  must  come  in  contact  and 
deal  with  private  or  other  interests 
in  no  way  connected  with  the  city. 
They  must  take  private  property, 
pass  over  and  use  pubhc  highways, 
streets,  and,  perhaps,  railroads.  The 
authority  to  secure  the  right,  al- 
though it  may  involve  details  in  no 
other  way  connected  with  the  city, 
and  may  affect  other  persons  or  cor- 
porations and  their  property,  does 
not  constitute  it  an  independent  sub- 
ject. The  power  to  supply  villages 
^vith  water  by  conti-act  is  incidental 
to  the  main  purpose,  and  may  serve 
as  a  means  of  attaining  it.  The  au- 
thority conferred  upon  the  tinistees 
to  levy  the  tax  was  indispensable  to 
render  the  conti-act  effectual.  The 
power  to  sell  involves  the  power  to 
buy  and  pay  for,  and  taxation  was 
the  only  mode  wliich  could  be  adopted 
for  that  purpose."  People  v.  Briggs, 
50  N.  Y.  553.  See  OdeU  v.  De  Witt, 
53  N.  Y.  643. 

-'  Foliamb's  Case,  5  Coke,  116. 

3  Voorhees  v.  Martin,  12  Barb.  508. 


1 1  Kent's  Com.  404.    The  constitu- 
tiou  of  New  York  declares  "  no  pri- 
vate   or    local    bill    which    may  be 
passed  shall  embrace  more  than  one 
subject,  and  that  shall  be  expressed 
in  the  title."    The  validity  of  an  act 
'•  to  amend  the  several  acts  in  relation 
to  the  city  of  Rochester"  was  ques- 
tioned on  the  grovmd  of  embracing 
a  multipUcity  of  subjects.     The  prin- 
cipal point  rehed  upon  was  that  the 
authority  conferred  upon  the  water 
commissionei-s,  by  one  section  of  the 
act.  to  contract  with  the  trustees  of 
villages  tlu-ough  wliich  the  water  to 
the  city  might  be  conducted  to  sup- 
ply such  villages  with  water,   and 
authorizing  the  trustees  to  levy  the 
annual   expense  with  their  annual 
tax,  was,  one  or  both  of  them,  an  inde- 
pendent subject  not  embraced  in  the 
title.   "  It  is  not  denied,"  said  Church, 
C.  J.,  "  that  pro%Tsions  for  furnishing 
the  city  with  a  supply  of  water  relate 
to  the  legitimate  functions  of  a  city 
government,    and    are    properly  in- 
cluded in  such  a  bill  as  tliis.    That 
object,  it  seems,  was  secm-ed  by  an 
independent  bill  to  which  these  pro- 
visions are  amendments.    The  pur- 
pose of  both  is  to  furnish  the  city 
with  water  for  the  extmguishing  of 
fires    and    other    pubUc    uses,   and 
also  to  furnish  the  inhabitants  of  the 
city  with  pme  water  for  domestic 


INTERPRETATION    AND    CONSTRUCTION.  429 

larged  as  well  as  arising  under  the  former  jurisdiction  of  the 
court.'  It  is  an  established  rule  that  where  an  action  founded 
upon  one  statute  is  given  by  a  subsequent  statute  in  a  new 
case,  everything  annexed  to  the  action  by  the  first  statute  is 
likewise  given.^  The  power  to  grant  temporary  alimony  is 
incidental  to  the  divorce  jurisdiction.''  If  an  act  merely  directs 
a  particular  measure  to  be  taken,  it  must  be  understood  as  re- 
ferring its  execution  to  the  proper  existing  agents,  and  to 
annex,  by  implication,  all  the  ordinary  means  for  carrying  the 
measure  into  effect."  Where  an  inferior  court  is  empowered 
to  grant  an  injunction,  it  has  power  to  enforce  its  observance 
by  punishing  disobedience ;  such  power  being  essential  to  afford 
relict  by  injunction.*  A  statute  authorizing  a  magistrate  to 
examine  such  witnesses  as  might  be  brought  before  him  au- 
thorizes him  to  issue  subpoenas  for  them,  and  to  compel  their 
attendance  by  the  usual  process  of  the  court.^ 

§  342.  Where  the  statutory  judicial  jurisdiction  in  a  case 
of  contested  election  is  specially  confined  to  certain  specified 
courts  and  is  not  a  method  of  redress  in  every  case  in  which 
an  alleged  illegal  election  has  occurred,  it  can  only  be  exer- 
cised with  reference  to  the  grounds  of  contest  enumerated  in 
the  act ;  otherwise  jurisdiction  would  have  been  given  in  gen- 
eral terms.''  Where  the  jurisdiction  given  is  general  it  in- 
cludes authority  to  decide  all  matters  and  questions  involved 
in  the  contest.  "  It  may  determine  which  contestant  is  elected, 
or  if,  from  fraud  or  any  other  circumstances,  it  be  of  opinion 
that  there  has  been  no  legal  election,  it  may  so  adjudge,  and 
declai'e  that  the  office  in  question  is  vacant."  ^  Courts  having 
inherently  the  power  of  revising  the  proceedings  of  all  infe- 
rior jurisdictions,  may  in  the  exercise  of  that  power  correct  er- 

1  People  V.  Commissioners,  3  Hill,  Matter  of  Oath  Before  Justices,  12 
599.  Coke,  130. 

2  Baltimore,  etc.  R  R  Co.  v.  Wilson,  '  ^  EUingham  v.  Mount,  43  N.  J.  L. 
2  W.  Va.  528,  556.  4Tft.    See  Anderson  v.  Levely,  58  Md. 

3  Goss  V.  Goss,  29  Ga.  109 ;  McGee    192. 

T.  McGee,  10  id.  477.  ^  Anderson  t.  Levely,  supra;  Handy 

*  United  States  v.  WyngaU,  5  Hill,  v.  Hopkins,  59  Md.  157.    See  People 

10.  \.  Chapin.  105  N.  Y.  309,  as  to  a  gen- 

s  Martin,  Ex  parte,  L.  R  4  Q.  B.  Div.  eral  power  given  to  the  comptroller 

512.  to  cancel  tax  sales  and  refund  the 

•People  V.  Hicks,  15  Barb.   160;  money  to  the  purchaser. 


430  INTERPRETATION   AND   CONSTRUCTION. 

rors  on  the  face  of  their  proceedings,  but  not  rejudge  their 
judgments  on  the  merits.  This  correctional  power  extends  no 
further  than  to  keep  such  inferior  tribunals  within  the  limits 
of  then*  jurisdiction  and  to  compel  them  to  exercise  it  with 
regularity''. ^  A  statute  conferred  jurisdiction  upon  the  supreme 
court  to  review  the  report  of  commissioners  of  estimate  and 
assessment  for  opening  a  street.  It  was  held  that  the  power 
was  conferred  to  be  exercised  by  it  as  a  court,  and  not  as 
a  tribunal  of  inferior  jurisdiction  created  by  statute,  or  by 
its  justices  or  commissioners  appointed  by  the  legislature. 
Gardner,  J. :  "  The  powers  incident  to  its  general  jurisdiction, 
so  far  as  apphcable,  at  once  attached  to  the  new  subject.  In 
administering  this  law,  as  every  other,  the  court  could  require 
the  services  of  its  officers,  punish  for  contempt,  issue  attach- 
ments, use  the  buildings  appropriated  to  the  ordinary  business 
of  the  court,  and  set  aside  the  proceedings  on  sufficient  cause."  ^ 
Where  the  judgment  of  an  appellate  court  on  certim^ari  is  made 
final  by  statute,  this  finality  extends  to  the  award  of  costs  on 
the  certiorari,  and  execution  for  the  same  in  the  case  removed.^ 
If  the  law  give  a  discretion  to  do  or  not  to  do  a  particular 
thiug  in  the  trial  of  a  cause  in  court,  without  specifying  by 
whom  it  is  to  be  exercised,  the  judge,  who  is  the  expounder  of 
the  law  and  the  controller  of  power,  is,  by  general  intendment, 
the  depositary  of  that  discretion.*  Courts  of  record  have  in- 
herent power  to  make  orders  or  general  rules  not  contraven- 
ing the  law  to  regulate  their  proceedings  in  the  exercise  of 
their  jurisdiction;  and  this  power  maybe  granted  them  by 
statutes  which  vest  in  them  a  new  jurisdiction.^  It  is  not 
competent  for  the  superior  courts  to  make  a  rule  restricting 

1  Carpenter's  Case,  14  Pa  St.  486.         dolph,  3  Binn.  377 ;  Walker  v.  Ducros, 

2  Matter  of  Canal  and  Walker  Sts.  12    18  La,  Ann,  703 ;  Vanatta  v.  Ander- 
N.  Y.  406.  son,  8  Bin.  417 ;  People  v.  McClellao, 

■1  Palmer  v.  Lacock,  107  Pa.  St  346 ;  31  Cal  101 ;  Kennedy  v.  Cunningham, 

SUvergood  v.  Storrick,  1  Watts,  533.  2  Met  (Ky.)  538 ;  David  v.  ^tna  Ins. 

*  Caldwell  v.  State.  34  Ga.  18,  19.  Co.  9  Iowa,  45 ;  People  v.  Chew,  6 

5  Anderson  v.  Leveley,  58  Md.  193 ;  CaL  636 ;  Lynch  v.  State,  9  Ind.  541 ; 

FuUerton  v.  Bank  of  U.  S.  1  Pet  604 ;  Sellars  v.  Carpenter,  27  Me.  497 ;  Vail 

Brooks  V.  Boswell,  34  Mo.  474 ;  Boas  v.   McKernan,   31    Ind.  431 ;  Gist  v. 

V.  Nagle,  3  S.  &  R.  353;  Snyder  v.  Drakely,    2  Gill,    330;    Seymour   v. 

Bauchman,   8    id.    336 ;    Deming    v.  Phillips,  etc.  Co.  7  Biss.  460 ;  Texas 

Foster,  43  N.  H.  165 ;  Suckley  v.  Rotch-  Land  Co.  v.  Williams,  48  Tex.  602. 
ford,   12  Gratt  60;  BaiTy  v.    Ran- 


INTERPRETATION   AND    CONSTRUCTION.  431 

the  discretion  of  the  trial  court  on  matters  as  to  which  that  dis- 
cretion at  common  law  is  unlimited,  as  in  the  recall  of  a  wit- 
ness.^ The  authority  to  punish  for  contempt  is  granted  as  a 
necessary  incident  to  every  tribunal  exercising  jurisdiction  as 
a  court.2  If  a  statute  assumes  jurisdiction  to  exist  and  regu- 
lates its  exercise  it  will  confer  it.* 

•  §  343.  When  a  statute  gives  a  right  or  imposes  a  duty,  it 
also  confers  by  implication  the  power  necessary  to  make  the 
right  available  or  to  discharge  the  duty ;  hence  the  acts  which 
directed  that  the  board  of  police  should  take  deeds  of  trust  on 
real  estate  from  the  borrowers  from  the  common  school  fund 
entitled  them  to  make  the  right  available  by  purchasing  the 
land  when  sold  for  the  payment  of  the  debt  due  the  school 
fund  and  to  resell  the  same  for  the  collection  of  the  debt.* 
Where  a  power  is  granted  and  the  mode  of  its  exercise  not 
prescribed,  it  will  be  implied  that  it  is  nevertheless  to  be  ex- 
ercised.' By  a  declaratory  provision  the  legislature  enacted 
that  a  thing  might  be  done  which  before  that  time  was  un- 
lawful, and  added  a  proviso  that  nothing  therein  contained 
should  be  so  construed  as  to  permit  some  matter  embraced  in 
the  general  provision  to  be  done ;  this  was  held  as  an  implied 
prohibition  of  the  excepted  act,  though  before  that  time  it  was 
lawful.®  The  power  given  to  a  sheriif  to  sell  on  execution  the 
interest  of  a  pledgor  in  goods  pledged  incidentally  or  by  im- 
plication authorized  him  to  take  the  goods  out  of  the  hands 
of  the  pledgee.'^  The  legislature  increased  the  salaries  of  cer- 
tain judicial  officers  of  a  municipal  corporation,  which  salaries 
were  a  charge  on  such  corporation.  Though  there  was  no 
present  fund  to  pay  the  same,  the  liability  existing,  there  was 
held  to  be  an  implied  power  to  create  one,  and  that  the  city 
is  subject  in  the  ordinary  modes  of  having  legal  liabilities 
enforced.*    Power  given  to  a  municipal  corporation  to  receive 

1  De  Lorme  v.  Pease,  19  Ga,  220.         Lapp,  26  Pa  St  99 ;  Perry  v.  Mitchell, 

2  United  States  v.    New    Bedford    5  Denio,  537. 

Bridge,  1  Woodb.  &  M.  401 ;  State  v.  3  state  v.  mUer,  23  Wis.  634. 

Morrill,  16  Ark.  384 ;  Mariner  v.  Dyer,  *  Gaines  v.  Paris,  39  IHisa  403, 

2  Me.  165 ;  Yates  v.  Lansing,  9  Jolin.  5  People  v.  Eddy,  57  Barb.  593. 

395 ;  Randall  v.  Pryor,  4  Oliio,  424 ;  6  State  v.  Eskridge,  1  Swan,  413. 

Gates  V.  McDaniel,  3  Port  356 ;  Ltn-  "  Stieflf  v.  Hart  1  N.  Y.  20, 

ing  V.  Bentham,  2  Bay,  1 ;  Albright  v,  8  Green  v.  Mayor,  etc.  2  Hilt,  203, 

310. 


432  INTEEPRETATION   AND    CONSTRUCTION. 

a  grant  of  lands  for  the  purpose  of  lajdng  or  widening  streets 
includes  in  it  the  power  to  remove  buildings.^ 

§  344.  When  the  legislature  gives  power  to  a  public  body 
to  do  anything  of  a  public  character,  the  legislature  means 
also  to  give  to  such  body  all  rights  without  which  the  power 
would  become  wholly  unavailable,  although  such  meaning  can- 
not be  implied  in  relation  to  circumstances  arising  accidentally 
only.  In  the  power  to  lay  sewers  is  implied  the  right  as 
against  the  land-owner  of  subjacent  support.^  "When  a  munici- 
pality is  created  to  further  certain  objects  of  general  concern, 
and  there  is  given  to  it  general  powers  to  be  used  to  that  end, 
the  legislature  must  be  held  to  have  intended  to  confer  all 
power  at  any  time  needful  thereto.  From  the  general  power 
to  take  lands  to  further  the  public  health  results  the  power, 
whenever  it  is  necessary  so  to  do,  to  take  lands  held  and  used 
for  other  prior  public  purposes.^  The  creation  of  a  munici- 
pal corporation  includes  a  grant  of  a  new  power  to  make  by- 
laws or  ordinances  for  the  government  of  the  inhabitants, 
and  to  enforce  them.^  The  power  to  make  an  addition  to 
a  public  building  is  included  in  the  grant  of  power  to  erect 
and  repair  such  building.  A  construction  cannot  be  given  to 
the  laws  conferring  power  to  levy  a  tax  for  the  "  erection  of 
public  buildings,"  which  would  limit  the  exercise  of  the  power 
to  the  erection  of  new  houses,  when  the  object  of  the  law  could 
even  be  attained  at  less  expense  by  an  addition  to  a  pubhc 
house  already  built.^  A  railroad  company  was  granted  by 
statute  aright  to  cross  another  railway  by  a  bridge  to  be  erected 
for  that  purpose ;  under  this  grant  it  was  held  that  the  grantee 
had  the  right  for  that  purpose  to  place  temporary  scaffolding 
on  the  property  of  the  other  party,  and  to  do  all-  other  acts 
necessary  for  the  enjoyment  of  the  princij)al  right  of  crossing.^ 
Power  to  sue  for  debts  due  to  the  estate  is  implied  in  the  au- 
thority given  to  administrators  ad  colligendum,  "  to  secure  and 
collect  the  said  property  [i.  e.,  of  the  estate],  whether  it  be 
goods,  chattels,  debts  or  credits,  etc. ;  it  was  held  amply  suffi- 

1  Patchin  v.  Brooklyn,  2  Wend.  377.        "  State  v.  Young,  3  Kan.  445. 

2  In  re  Corporation  of  Dudley,  L.  R.        s  Brown  v.  Graham,  58  Tex.  254 

8  Q.  B.  Div.  93.  «  Clarence  R'y  Co.  v.  Great  North 

3  Matter  of  the  City  of  Buffalo,  68  of  Eng.  etc.  R'y  Co.  13  M.  &  W.  706, 
K  Y.  167,  172.  721. 


LNTERPEETATION    AND   CONSTRUCTION.  433 

cient  to  authorize  the  bringing  of  suits  if  necessary  for  the  pur- 
pose of  executing  the  power.'  Overseers  of  the  poor  of  a 
town,  being  pul)lic  agents  and  trustees  of  it  in  respect  to  the 
power,  have  necessarily,  without  express  authority  from  the 
legislature,  a  capacity  to  sue  commensurate  with  the  public 
trusts  and  duties.- 

§  345.  If  a  corporation  is  organized  for  a  business  which 
implies  the  necessity  to  raise  money,  the  capacity  to  make  notes 
and  securities  usual  in  such  cases  will  be  implied.  Every  cor- 
poration is  by  implication  possessed  of  the  power  to  employ 
the  appropriate  means  to  accomplish  its  chartered  purpose.^ 
A  municipal  corporation  may  exercise,  as  incident  to  the  pur- 
pose of  its  creation,  such  powers  as  will  enable  it  fully  to  dis- 
charge the  duties  devolving  on.  it.'  It  has  the  jiower,  and  it 
results  from  its  corporate  existence  as  a  town,  to  erect  a  build- 
ing suitable  for  the  accommodation  of  oflficers  and  records,  and 
for  the  preservation  of  its  necessary  property.*  The  right  to 
erect  such  a  structure  is  incidental  to  the  powers  expressly 
granted,  or  essential  to  carry  out  the  objects  of  the  corpora- 
tion.^ Where  the  charter  of  a  corporation  authorizes  it  to  pur- 
chase land  for  a  specified  purpose,  in  the  absence  of  evidence  it 
wiU  be  presumed  that  any  land  purchased  by  it  was  acquired 
for  the  purpose  authorized  by  the  charter.^  If  the  taking  effect 
of  a  statute  depends  on  subsequent  acts  of  executive  officers, 
directed  by  the  enactment  to  be  done,  it  will  be  presumed  that 
such  acts  when  due  have  been  performed.^  There  is  a  like 
implication  wherever  any  fact  must  precede  an  enactment.' 
Where  legislation  depends  on  facts  to  be  ascertained  by  the 
legislature,  the  declaration  of  such  facts  in  the  act  is  taken  as 
conclusive.  Thus,  where  the  legislature  determines  that  a 
public  improvement  will  be  a  benefit  to  the  adjacent  prop- 
erty, and  that  the  expenses  of  making  the  same  shall  be  paid 

« Ventress  v.  Smith,  10  Pet  161.  *  Van  Sicklen  v.  Burlington,  27  Vt 

-  Overseers  of  Pittstown  v.  Over-  70,  76. 

seers  of  Pittsburgh,  18  Jolin.  407,  4ia  *  Clarke  v.  Brookfield,  81  3Io.  503, 

n   Moraw.  on    Corp.  §  350;  WiU-  511. 

iamsport  v.  Commonwealth,  84  Pa.  *  State  v.  Haynes,  73  Ma  377. 

St  487 ;  Slark  v.  Ilighgiifce  Archway  "  Mallett  v.  Sinijison,  94  N.  C.  37. 

Co.  5  Taunt  792 ;  Brougliton  v.  :\Ian-  -s  stiue  v.  Bennett,   13  Minn.  153 ; 

Chester  Water  Works  Co,  3  B.  &  AIJ.  State  v.  Dunning,  9  InA  20. 

1,  12.  9  State  V.  Noyes,  47  Me.  185). 
28 


434:  INTEKPKETATION   AND   CONSTKUCTION". 

by  the  owners  of  such  property,  the  courts  have  nothing  to 
do  with  the  correctness  or  incorrectness  of  the  determina- 
tion, but  must  assume  the  fact  to  be  as  the  legislature  as- 
sumes or  declares  it.'  Where  the  constitution  provides  that 
legislative  acts  shall  not  take  effect  until  a  future  day,  unless, 
for  some  emergency,  the  legislature  deems  it  necessary  to  pro- 
vide otherwise,  if  an  act  contains  a  provision  that  it  go  into 
effect  immediately,  it  will  be  implied  that  in  the  judgment  of 
the  legislature  there  was  an  emergency ;  and  if  the  circum- 
stance that  an  emergency  exists  is  stated  in  the  act,  when  such 
statement  is  required,  it  will  be  assumed  by  the  courts  that  it 
is  sufficient.^  Special  acts  of  incorporation  for  constructing 
railroads,  or  probably  any  special  act,  will  be  valid  notwith- 
standing the  constitutional  provision  requiring  general  laws 
for  such  purposes,  if  in  the  judgment  of  the  legislature  the 
object  in  view  cannot  be  attained  under  general  laws.  Such  a 
determination  is  implied  from  the  act  being  passed.' 

1  People  V.  Lawrence,  36  Barb.  177.       ^  Johuson  v.  Joliet,  etc.  R  R.  Co.  23 

2  Gentile  v.  State,  29  Ind  409.  IlL  202. 


CHAPTER  XIV. 


STRICT  CONSTRUCTION. 


t5  346. 

Literal  and  strict  construction 
compared. 

8  370. 

349. 

Strict  construction  of   penal 
statutes. 

371. 

356. 

Not  construed  so  strictly  as  to 

373. 

defeat  intention. 

378. 

358. 

What  statutes  are  penal. 

387. 

361. 

Revenue  laws. 

362. 

Statutes  which  impose  burden 

390. 

of  taxation. 

395. 

365. 

Statutes  delegating  the  taxing 

398. 

power. 

400. 

866. 

Statutes      against     common 

right. 

403 

368. 

Statutes  of  limitations. 

407. 

369. 

Limitations  as   to  new  trials 
and  appeals. 

Statutes  interfering  with  legit- 
imate industries,  etc. 

Statutes  creating  liability  for 
death  by  negligence. 

Civil  damage  acts. 

Grants  of  titles  and  franchises. 

Statutes  for  exercise  of  emi- 
nent domain. 

Statutes  granting  power. 

Jurisdiction  of  courts. 

Statutory  rights. 

Statutes  in  derogation  of  the 
common  law. 

Interpretation  clauses. 

Statu te.s  affecting  statutory 
policy. 


§  346.  Literal  interpretation  and  strict  construction  com- 
pared.—  Statutes  are  seldom  written  in  such  precise  and  cate- 
gorical terms  as  to  point  out  inclusively  and  exclusively  all  their 
intended  applications.  General  and  more  or  less  flexible  lan- 
guage is  used.  It  is  construed  with  reference  to  the  subject 
of  the  act,  its  purpose ;  and  popular  words  are  read  and  under- 
stood according  to  their  common  acceptation.^  And  if  tech- 
nical words  are  used  they  are  construed  according  to  their 
technical  sense.^  There  are  many  statutes  of  divers  kinds 
which  are  strictly  construed.  And  there  is  a  great  variety  of 
other  statutes  which  are  remedial  in  their  nature  and  are  lib- 
erally construed.  The  statutes  which  are  thus  classified  for 
strict  or  liberal  construction  include  a  large  part  of  the  legis- 

>  De  Veaux  v.  De  Veaux,  1  Strob.  ner  v.  Real  Estate  Bank,  5  Ark.  536 ; 

Eq.  283 ;  ante,  ^g  250-25G.  ]\Ierchants'  Bank  v.  Cook,  4  Pick.  405 ; 

2 Weill  v.   Kenfield,   54   Cal.   Ill;  United  States  v.  Breed,  1  Sumn.  159 ; 

Opinion    of    Justices,   7    Mass.  523;.  Elliott  v.  Swartwout,  10  Pet  137. 
McCool  V.  Smith,  1  Black,  459;  Buck- 


436  STRICT   CONSTKTJCTION. 

lation  of  every  state.  The  same  language  may  have  a  broader 
scope  and  effect  for  remedial  purposes  than  under  the  restrain- 
ino-  influence  of  considerations  which  induce  strict  construe- 
tion.  In  the  case  of  Bones  v.  Booth  ^  construction  was  given 
to  the  phrase  "  a  single  sitting  "  of  a  loser  at  play.  The  stat- 
ute gave  him  a  right  for  a  hmited  time  to  recover  his  losses 
above  101.  at  "  a  single  sitting;"  and  gave  an  informer,  after- 
wards, the  right  to  recover  them  and  treble  value  besides.  As 
to  the  loser  the  statute  was  held  remedial,  and  the  losses,  those 
of  a  single  sitting,  though  suspended  for  dinner ;  but  as  to  the 
informer's  right,  the  statute  was  penal,  and  the  suspension  for 
dinner  broke  the  continuity  of  the  sitting. 

§  347.  Strict  construction  is  not  a  precise  but  a  relative  ex- 
pression; it  varies  in  degree  of  strictness  according  to  the 
character  of  the  law  under  construction.     The  construction 
will  be  more  or  less  strict  according  to  the  gravity  of  the  con- 
sequences flowing  from  the  operation  of  the  statute  or  its  in- 
fraction ;  if  penal,  the  severity  of  the  penalty ;  ^  if  in  derogation 
of  common  right,  or  capable  of  being  employed  oppressively,  the 
extent  and  nature  of  the  innovation  and  the  consequences ;  and 
in  any  case,  according  to  the  combined  effect  and  the  recipro- 
cal influence  of  all  relevant  principles  of  interpretation.^     A 
remedial  statute,  not  clear  as  to  any  proposed  application,  ad- 
mits of  resort  to  many  rules  of  construction  to  determine 
what  the  courts  are  authorized  to  assume  is  the  meaning  and 
intention  of  the  law-maker.*     But  a  statute  which  must,  on 
account  of  its  subject  or  nature,  be  construed  strictly,  as  the 
phrase  is,  must  be  read  without  expansion  beyond  its  letter, 
without  recourse  to  any  such  rules ;  it  is  to  be  confined  to 
such  subjects  or  applications  as  are  obviously  within  its  terms 
and  purpose.     In  other  words,  a  strict  construction  is  a  close 
and  conservative  adherence  to  the  literal  or  textual  interpre- 
tation.' 

12W.  Black.  1226.  v.   Taylor,    8    Port.    564;    Jordt    v. 

2  Commonwealth  v.  Fisher,  17  State,  31  Tex.  571;  Andrews  v. 
Mass.  46,  49 ;  Taylor  v.  United  States,  United  States,  2  Story,  203 ;  United 
2  How.  197,  210.  States  v.   Bassett,  id.   389 ;  State  v. 

3  See  Chapin  v.  Persse  &  Brooks  Graham,  88  Ark.  519;  Watervhet  T. 
Paper  AVorks,  30  Conn.  461.  Co.  v.  McKean,  6  Hill,  616 ;  Melody 

*  Post,  %%  419-444.  V-  Reab,  4  Mass.  473 ;  Schooner  Entcr- 

5  Austin  V.  State,  71  Ga,  595 ;  Bettis    prise,  1  Paine,  33. 


STKIOT   CONSTRUCTION.  437 

§  348.  The  rule  of  strict  construction  is  not  violated  by 
permitting  the  words  of  a  statute  to  have  their  full  meaning. 
The  letter  of  remedial  statutes  may  be  extended  to  include 
cases  clearly  within  the  mischief  they  were  intended  to  rem- 
edy, unless  such  construction  does  violence  to  the  language 
used ;  but  consideration  of  the  old  law,  the  mischief,  and  the 
remedy,  are  not  enough  to  bring  cases  out  of  the  terms  within 
the  purview  of  a  penal  statute.  They  must  be  expressly  in- 
cluded in  the  words  of  the  statute.  This  is  all  the  difference 
between  a  liberal  and  a  strict  construction  of  a  statute.  A  case 
may  come  within  one  unless  the  language  excludes  it,  while 
it  is  excluded  by  the  other  unless  the  language  includes  it.^  In 
Attorney-General  v.  Sillem,  Pollock,  C.  13.,  said :  "  We  cannot 
and  ought  not  to  deal  with  it  as  a  crime,  unless  it  is  plainly  and 
without  doubt  included  in  the  language  used  by  the  legislar 
ture."  ^  In  another  case  ^  he  said :  "  Although  the  common 
distinction  taken  between  penal  acts  and  remedial  acts,  that 
the  former  are  to  be  construed  strictly  and  the  others  are  to 
be  construed  Uberally,  is  not  a  distinction,  perhaps,  that  ought 
to  be  erased  from  the  mind  of  a  judge,"  yet  the  distinction 
now  means  little  more  than  "that  penal  statutes,  hke  all 
others,  are  to  be  fairly  construed  according  to  the  legislative 
intent  as  expressed  in  the  enactment,  the  court  refusing  on 
the  one  hand  to  extend  the  punishment  to  cases  wliich  are  not 
clearly  embraced  in  them,  and  on  the  other  equally  refusing 
by  any  mere  verbal  nicety,  or  forced  consideration  or  equita- 
ble interpretation,  to  exonerate  parties  plainly  within  their 
scope."  *  Strict  construction  is  not  the  exact  converse  of  lib 
eral  construction,  for  it  does  not  consist  in  giving  words  the 
narrowest  meaning  of  which  they  are  susceptible.*  And  a  late 
writer  adds:  What  is  meant  by  it  is  that  acts  of  this  kind  — 
those  which  are  to  be  strictly  construed  —  are  not  to  be  re- 
garded as  including  anything  which  is  not  within  their  letter 
as  weU  as  their  spirit,  which  is  not  clearly  and  intelligibly  de- 
scribed in  the  very  words  of  the  statute,  as  well  as  manifestly 
intended  by  the  legislature.*' 

1  State  V.  Powers,  36  Conn.  77.  &  C.  531 ;  Foley  v.  Fletcher,  28  L.  J. 

2  2  H.  &  C.  431,  514.  Ex.  lOG ;  3  H.  &  N.  769. 

8  Nicholson  v.  Fields,  31  L.  J.  Ex.        » United  States  v.  Winn,  3  Sumn. 
235 ;  7  H.  &  N.  810,  817.  209. 

4  Attorney-General  v.  Sillem,  2  H.        6  Wilberf orce,  St  L.  246;  Britt  v. 


438 


STRICT   CONSTEUOTION. 


§  349.  Strict  construction  of  penal  statutes. —  Tlie  penal 
law  is  intended  to  regulate  the  conduct  of  people  of  aU  grades 
of  intelligence  within  the  scope  of  responsibility.  It  is  there- 
fore essential  to  its  justice  and  humanity  that  it  be  expressed 
in  language  which  they  can  easily  comprehend ;  that  it  be  held 
obhgatory  only  in  the  sense  in  which  all  can  and  will  under- 
stand it.  And  this  consideration  presses  with  increasing 
weight  according  to  the  severity  of  the  penalty.*  Hence 
every  provision  affecting  any  element  of  a  criminal  offense 
involving  life  or  liberty  is  subject  to  the  strictest  interpreta- 
tion j^  and  every  provision  intended  for  the  benefit  of  the 
accused,  for  the  same  humane  reason,  receives  the  most  favor- 
able construction.'  "  The  rule  that  penal  laws  are  to  be  con- 
strued strictly  is  perhaps  not  much  less  old  than  construction 


Robinson,  L.  R.  5  C.  P.  513,  514 ;  East 
India  Interest,  3  Bing.  196 ;  Parting- 
ton V.  Attorney-General,  L.  R.  4  H.  L. 
122.  In  Nicholson  v.  Fields,  7  H.  & 
N.  817,  PoUock,  C.  B.,  said:  "I  ad- 
mit that  the  common  distinction  be- 
tween penal  and  remedial  acts,  viz., 
that  the  one  is  to  be  cousti'ued  strictly, 
the  other  hberaUy,  ought  not  to  be 
ei-ased  from  the  mind  of  a  judge; 
yet  whatever  be  the  act,  be  it  penal, 
and  certainly  if  remedial,  we  ought 
always  to  look  for  its  ti'ue  construc- 
tion. In  that  respect  there  ought  to 
be  no  distinction  between  a  penal  and 
a  remedial  statute.  If  the  remedial 
statute  does  not  extend  to  the  par- 
ticular matter  imder  consideration, 
we  have  no  power  to  legislate  so  as  to 
extend  it.  Undoubtedly  we  are  thus 
far  bound  to  a  strict  construction  in 
a  penal  statute,  that  if  tliere  be  a  fair 
and  reasonable  doubt,  we  must  act 
as  in  revenue  cases,  where  the  rule  is, 
that  the  subject  is  not  to  be  taxed 
without  clear  words  for  that  purpose." 
iBish.  Writ  L.  §§  193,  109;  Com- 
monwealth V.  Fisher,  17  Mass.  49; 
C!onm[ionwealth  v.  SneUing,  4  Binn. 
379;  United  States  v.  Moulton,  5 
Mason,  537 ;  State  v.  WDcox,  3  Yerg. 


278;  Schooner  Enterprise,  1  Paine, 
32 ;  Randolph  v.  State,  9  Tex.  521 ; 
Chicago,  etc.  R.  R  Co.  v.  People,  67 
HL  11. 

2  Id. 

3  Commonwealth  v.  Keniston,  5 
Pick.  420 ;  United  States  v.  Ragsdale, 
Hempst  497 ;  Heward  v.  State,  13  Snx. 
&  M.  261 ;  Sneed  v.  Commonwealth,  6 
Dana,  338 ;  DuU  v.  People,  4  Denio,  91. 
Spencer,  J.,  said  ia  Sickles  v.  Sharp, 
13  John.  497:  "The  rule  that  penal 
statutes  are  to  be  construed  strictly 
when  they  act  on  the  offender  and 
inflict  a  penalty  admits  of  some 
qaahfication.  In  the  construction  of 
statutes  of  this  description  it  has  been 
often  held  that  the  plana  and  mani- 
fest iatention  of  the  legislature  ought 
to  be  regarded.  A  statute  wliich  is 
penal  as  to  some  persons,  provided  it 
is  beneficial  generally,  may  be  equi- 
tably construed."  State  v.  Canton, 
43  Mo.  48,  52.  Forfeitures  are  not 
favored,  and  courts  iuchne  against 
them.  Where  a  statute  may  be  con- 
strued so  as  to  give  a  penalty,  and 
also  so  as  to  withhold  the  penalty,  it 
will  be  given  the  latter  consta-uctioiL 
Renf  roe  v.  Colquitt,  74  Ga.  619. 


8TKI0T   CONSTRUCTION.  439 

itself.  It  is  founded  on  the  tenderness  of  the  law  for  the 
rights  of  individuals ;  and  on  the  plain  principle  that  the  power 
of  punishment  is  vested  in  the  legislature,  not  in  the  judicial 
department.  It  is  the  legislature,  not  the  court,  which  is  to 
define  a  crime  and  ordain  its  punishment.  It  is  said  that,  not- 
withstanding this  rule,  the  intention  of  the  law-maker  must 
govern,  in  the  construction  of  penal  as  well  as  other  statutes. 
Thi.s  is  i  rue.  But  this  is  not  a  new  independent  rule  which 
subverts  ihe  old.  It  is  a  modification  of  the  ancient  maxim, 
and  amounts  to  this :  that  though  penal  laws  are  to  be  con- 
strued strictly,  they  are  not  to  be  construed  so  strictly  as  to 
defeat  the  obvious  intention  of  the  legislature.'  The  maxim 
is  not  to  be  so  applied  as  to  narrow  the  words  of  the  statute 
to  the  exclusion  of  cases  which  those  words  in  their  ordinary 
acceptation,  or  in  that  sense  in  which  the  legislature  has  obvi- 
ously used  them,  would  comprehend.  The  intention  of  the 
legislature  is  to  be  collected  from  the  words  they  employ. 
Where  there  is  no  ambiguity  in  the  words  there  is  no  room 
for  construction.  The  case  must  be  a  very  strong  one  indeed 
which  would  justify  a  court  in  departing  from  the  plain  mean- 
ing of  words,  especially  in  a  penal  act,  in  search  of  an  intention 
which  the  words  themselves  did  not  suggest.  To  determine 
that  a  case  is  within  the  intention  of  a  statute  its  language 
must  authorize  us  to  say  so.  It  would  be  dangerous,  indeed, 
to  carry  the  principle  that  a  case  which  is  within  the  reason 
and  mischief  of  a  statute  is  within  its  provisions  so  far  as  to 
punish  a  crime  not  enumerated  in  the  statute  because  of  equal 
atrocity,  or  of  a  kindred  character,  with  those  which  are  enu- 
merated." 2 

§  350.  A  penal  statute  cannot  be  extended  by  implication  or 
construction.     It  cannot  be  made  to  embrace  cases  not  within 

iWaltonv.  State,  62  Ala.  197;  Huff-        2  United    States    v.  WUtberger,    5 

man  v.  State,  29  id.  40;  Crosby  v.  Wheat.   76,  95.    See    Jenkinson     v. 

Hawthorn,   25  id.   221 ;    Holland    v.  Tliomas,  4  T.  R  665 ;  Rex  v.  Handy, 

State,  554  Ga.  455 ;  Keller  v.  State,  11  6  id.  286 ;  Wame  v.  Varley,  id.  443 ; 

Md.  525 ;    United  States  v.   Athens  Martin  v.  Ford,  5  id.  101 ;  Fletcher  v. 

Armory,  35  Ga,  344 ;  American  Fur  Lord  Sondes,  3  Bing.  580 ;  Hinter- 

Co.  V.  United  States,  2  Pet.  367 ;  Tlie  mister  v.  First  Nat  Bank,  64  N.  Y. 

Schooner  Harriet,  1  Story,  251;  The  212;   United  SUites    v.   Huggett,   40 

Schooner  Industry,  1  GalL  114  Fed.  Rep.  636. 


4^0  STRICT    CONSTRUCTION. 

the  letter,  thougli  within  the  reason  and  policy,  of  the  law,' 
Although  a  case  mav  be  within  the  mischief  intended  to  be 
remedied  by  a  penal  act,  that  fact  affords  no  sufficient  reason 
for  construing  it  so  as  to  extend  it  to  cases  not  within  the  cor- 
rect and  ordinary  meaning  of  its  language.^  And  as  a  general 
rule  where  a  penalty  is  affixed  by  a  statute  to  an  act  or  omis- 
sion, such  penalty  is  the  only  punishment  or  loss  incurred  by 
the  guilty  party.*  To  constitute  the  offense  the  act  must 
be  both  Avithin  the  letter  and  spirit  of  the  statute  defining 
it.*  Penal  statutes  can  never  be  extended  by  mere  impli- 
cation to  either  persons  or  things  not  expressly  brought 
within  their  terms.^  Where  an  act  prohibited  the  sale  of  in- 
toxicating liquors  in  the  vicinity  of  certain  manufacturing 
establishments  in  three  named  counties,  it  was  held  to  have 
application  only  to  such  establishments  as  were  then  in  being.*^ 
It  is  a  principle  in  the  construction  of  statutes  that  the  legis- 
lature does  not  intend  the  infliction  of  punishment,  or  to  inter- 
fere with  the  liberty  or  rights  of  the  citizen,  or  to  grant 
exceptional  powers,  privileges  or  exemptions  by  doubtful  lan- 
guage; but  will  in  such  cases  express  itself  clearly,  and  in- 
tends no  more  than  it  so  expresses.'  Abbott,  J.,  said :  "  It 
would  be  extremely  wrong  that  a  man  should,  by  a  long  train 
of  conclusions,  be  reasoned  into  a  penalty  when  the  express 
words  of  the  act  of  parliament  do  not  authorize  it."  ^  This  strict- 
ness does  not  exclude  accessories  before  the  fact,  though  not 

1  Id. ;  State  v.  Lovell,  23  Iowa,  304 ;  Robinson,  L.  R.  5  C.  P.  at  pp.  513, 

People  V.  Peacock,  98  III  172 ;  Lair  514 ;  Dewey  v.  Goodcuough,  5G  Barb. 

V.  KiUmer,  25  N.  J.  L.  522 ;  Merrill  54 ;  East  India  Interest,  3  Bing.  at 

V.  Melcliior,  30  Miss.  516 ;  Foote  v.  Van-  p.  196. 

zandt,  34  id.  40 ;  Andrews  v.  United  &  People  v.  Peacock,  supra;  Hall  v. 

States.  2  Story,  202 ;  Shaw  v.  Clark,  State,  20  Oliio,  8 ;  Grooms  v.  Harmon, 

49  Mich.  384 ;  Hall  v.  State,  20  Oliio,  59  Ala.  510 ;  Southwestern  E.  R  Co. 

7,  16 ;  Van  Buren  v.  Wyhe,  56  Mich.  v.  Cohen,  49  Ga.  627 ;  United  States 

501 ;  Graff  v.  Evans,  L.  R.  8  Q.  B.  v.  Wkin,  3  Sunm.  209 ;  The  Schooner 

Div.  377 ;  Haynie  v.  State,  32  Miss.  Harriet,  1  Story,  351 ;  State  v,  Gra- 

400.  ham,  38  Ark.  519 ;  Foster  v.  Rhoads, 

3  United  States  v.  Sheldon,  3  Wheat  19  John.  191. 

119.  6  Hall  V.  State,  30  Ohio,  8 ;  United 

3  In  re  International  Patent  P.  etc.  States  v.  Pavd,  6  Pet  141. 

Co.  37  L.  T.  (N.  S.)  351 ;   L.  R.  6  Ch.  "  4  Inst  332. 

Div.  556.  ^  Rex  v.  Bond,  1  B.  &  Aid.  at  p.  393. 

*  Laii'  V.  Killmer,  supra;  Britt  v. 


8TKICT   CONSTRUCTION.  441 

named  in  the  statute,^  Kor  does  it  preclude  the  application 
of  common  sense  to  the  terms  made  use  of  in  the  statute  to 
avoid  an  absurdity  which  the  legislature  ought  not  to  be  pre- 
sumed to  have  intended.'-  Thougli  a  statute  may  be  of  a  class 
which  must  be  construed  strictly,  it  is  nevertheless  to  be  so 
construed  as  to  effect  the  intention  of  the  legislature.  Effect 
is  to  be  given  to  the  plain  meaning  of  the  language,  and 
strict  construction  is  to  be  applied  only  where  the  effect  is 
:  easonably  open  to  question.*  The  rule  that  penal  statutes  are 
to  be  construed  strictly  is  not  violated  by  allowing  their  words 
to  have  their  full  meaning,  or  even  the  more  extended  of  two 
meanings,  where  such  construction  better  harmonizes  with  the 
context.'* 

§  351.  A  few  cases  will  be  given  illustrative  of  the  principle 
of  strict  construction :  Driving  cattle  was  held  not  within  the 
true  moaning  of  an  act  prohibiting  their  transportation.^  A 
statute  which  provides  a  penalty  for  resisting  an  officer  "in 
serving  or  attempting  to  execute  any  legal  writ,  rule,  order  or 
process  whatever,"  does  not  embrace  the  case  of  resisting  an 
officer  who  was  attempting  to  arrest,  without  any  warrant, 
writ  or  process  of  any  kind,  a  person  who  was  breaking  the 
public  peace.^  A  penalty  provided  against  a  mortgagee  for 
failing  to  discharge  a  paid  mortgage  cannot  be  extended  to 
the  assignee  of  a  mortgage.^  When  either  of  two  construc- 
tions can  be  given  to  a  statute  and  one  of  them  involves  a  for- 
feiture the  other  is  to  be  preferred.^  In  a  penal  act  the  word 
"  and  "  cannot  be  read  as  "  or."  ^  The  expression  "  this  act " 
cannot  be  taken  to  include  another  act  in  pari  mate7'ia}^  The 
words  "  domestic  distilled  spirits "  in  an  inspection  law  con- 
taining a  penalty  or  forfeiture  were  construed  to  mean  spirits 
distilled  within  the  state,  and  this  as  matter  of  law,  not  to  be 

1  Walton  V,  State,  63  Ala.  197.  6  state  v.  Lovell,  23  Iowa,  304. 

2  Coramonwealth  v.  Loring,  8  Pick.        '  Grooms  v.  Harmon,  59  Ala.  510. 
373 ;  House  t.  House,  5  Har.  &  J.  125 ;        «  Vatel's  20th  Rule  of  Constrution ; 
Smith  V.  State,  17  Tex.  191.  Farmers',  etc.  Nat  Bank  v.  Bearing, 

3  Wilson  V.  Wentworth,  25  N.  H.  91  U.S.  29,35;  Renfroe  v.  Colquitt, 
247.  74  Ga.  G19. 

*  United  States  v.  Hartwell,  6  Walk  '■»  Cuitod    States  v.  Ten   Cases    of 

385.  Shawls,  2  Paine,  162. 

»  United  States  V.Sheldon,  3  Wheat  i«Rex  v.  Trustees,  etc.  5  Ad.  &  E. 

119.  563. 


442  STKICT   CONSTKUCTION. 

modified  by  any  proof  of  usage  giving  it  a  broader  scope.  It 
was  held  also  not  to  include  spirits  rectified  there  but  manu- 
factured in  another  state.^  A  statute  prescribing  a  penalty 
for  "  any  officer  taking  greater  or  other  fees  "  than  are  ex- 
pressed in  the  fee-bill  was  held  not  applicable  to  any  person 
out  of  office  for  services  while  in  office.-  The  word  "  sale  "  in 
a  penal  statute  does  not  include  an  exchange?  A  statute  mak- 
ing punishable  "  the  offense  of  insurrection  or  an  attempt  at 
insurrection  "  does  not  by  these  words  apply  to  an  attempt  to 
incite  insurrection.*  In  the  construction  of  an  act  imposing 
penalties  upon  gambling,  it  was  held  that  half-pennies  tossed 
up  at  a  game  called  toss  did  not  come  within  the  words  "  in- 
struments of  gaming ; "  ^  that  deposit  of  half  a  sovereign  as  a 
bet  on  a  dog  race  w^as  not  "  betting  with  a  coin  as  an  instru- 
ment of  gaming  at  a  game  of  chance."  ^  A  statute  forbade  an 
alderman  to  be  clerk  to  the  justices  in  any  borough,  and  for- 
bade the  clerk  to  the  justices  in  any  borough  to  be  directly  or 
indirectly  interested  in  any  prosecution.  A  penalty  by  the 
same  section  was  imposed  on  any  person,  being  an  alderman, 
w^ho  should  act  as  clerk  to  the  justices  of  a  borough  or  should 
otherwise  offend  in  the  premises.  The  defendant  was  clerk  to 
the  justices,  and  had  done  the  prohibited  act ;  he  had  been  in- 
terested in  a  prosecution ;  but  it  was  held  that  the  penalty 
clause  only  applied  to  those  who  are  in  the  offices  there  speci- 
fied, among  which  the  clerk  to  the  justices  was  not  included. 
The  court  adhered  to  the  grammatical  construction.  Cole- 
ridge, J.,  said :  "  There  are  two  distinct  prohibitory  provisos, 
and  it  is  quite  obvious  that  the  intention  was  to  annex  the 
penalty  to  the  violation  of  each.  But  this  cannot  be  done  if 
a  grammatical  construction  be  given  to  the  words  used.  The 
only  way  in  which  it  can  be  done  is  by  inserting  .  .  .  the 
\s  ords  '  any  person  who '  before  '  shall  otherwise  offend,'  But 
I  never  heard  that  it  was  allowable  to  insert  words  for  the 
purpose  of  extending  a  penal  clause."  ' 

1  Commonwealth    v.   Giltinan,    64        5  "VVatson  v,  Martin,  34  L.  J.  M.  C. 

Pa.  St.  100,  50, 

-'  Gallagher  v.  Neal,  3  P.  &  W.  183.        enkst  v.  Molesbury,  L.  R  6  Q.  B, 

3  Gunter  v,  Leckey,  30  A]a.  591.  130. 

<  Gibson  v.  State,  38  Ga.  571.     •  "  Coe  v.  Lawrance,  1  E.  &  B.  516. 


8TKI0T   CON8TEU0TI0N.  4A'6 

§  352.  A  statute  provided  that  "  all  notes  or  conveyances 
whatever,  in  which  the  consideration  shall  be  for  any  money 
or  goods  won  by  playing  at  cards,  dice,  or  any  other  game 
whatever,  or  by  betting  on  the  sides  or  hands  of  such  as  are 
gaming,  or  by  any  betting  or  gaming  whatever,  shall  be  void 
and  of  no  effect."  ^  ...  In  Shaw  v.  Clark  ^  the  question  was 
whether  a  deal  in  "  options "  was  within  the  statute.  The 
court  by  Cooley,  J.,  said :  "  In  common  speech  gaming  is  ap- 
pUed  to  play  with  stakes  at  cards,  dice  or  other  contrivance, 
to  see  which  shall  be  the  winner  and  which  the  loser,  A  con- 
tract for  the  purchase  of  options  is  not  gaming  within  this 
meaning  of  the  term.  In  form  it  is  the  purchase  and  sale  of 
a  commodity  to  be  delivered  at  a  future  day,  and  it  only  resem- 
bles gaming  in  that  the  parties  take  a  chance  of  gain  or  loss  with- 
out intending  that  the  sale  which  they  nominally  make  shall  ever 
become  a  legitimate  business  transaction.  Betting  in  common 
speech  means  the  putting  of  a  certain  sum  of  money  or  other  val- 
uable thing  at  stake  on  the  happening  or  not  happening  of  some 
uncertain  event.  A  purchase  of  options  is  not  betting  in  this 
sense,  though  it  resembles  it  in  the  fact  that  risks  are  taken  on 
uncertain  events,  and  that  the  tendency  to  those  engaged  in 
it  is  demoralizing.  The  statute  in  terms  forbids  betting  and 
gaming,  and  it  contains  penal  provisions  for  the  punishment 
of  those  who  engage  in  them ;  but  penal  statutes  are  not  en- 
larged by  intendment,  and  acts  not  expressly  forbidden  by 
them  cannot  be  reached  merely  because  of  their  resemblance, 
or  because  they  may  be  equally  and  in  the  same  way  demoraliz- 
ing and  injurious."  *  Those  who  contend  that  a  penalty  may 
be  inflicted  must  show  that  the  words  of  the  act  distinctly  ex- 
press that  under  the  circumstances  it  has  been  incurred.  They 
must  fail  if  the  words  are  merely  equally  capable  of  a  construc- 
tion that  would,  and  one  that  would  not,  inflict  the  penalty.^ 

§  353.  There  is  a  like  close  interpretation  whether,  as  in  the 
l)receding  instances,  the  provision  relates  to  the  elements  of 
the  offense,  or  concerns  the  penalty  or  the  procedure.^  Where 

1  Sec.  1996,  Comp.  Laws  of  Midi.  L.  R.  9  C.  P.  7 ;  The  Gauiit!et>  L.  R  4 

2  49  Mich.  384.  P.  C.  191. 

3  See  Smith  v.  State,  17  Tex.  191 ;  »  Rex  v.  Hymen.  7  T.  R  536 ;  Wal- 
State  V.  Rorie,  23  Ark.  726.  wm  v.  Smith,  1  Salk.  177 ;  Partridge 

<  Brett,  J.,  in  Dickenson  V.  Fletcher,    v.   ]N  ay  lor,  Cro.  Ehz.  480;  Common- 
wealth V.  Keniston,  5  Pick.  420. 


444 


STKICT   CONSTBtJOTION. 


the  penalty  for  a  certain  offense  was  that  the  convict  should 
lose  his  right  hand,  he  could  not  be  adjudged  to  lose  his  left 
hand,  the  right  hand  having  before  been  cut  off.^  An  act  was 
silent  on  the  place  of  imprisonment,  and  as  between  different 
places  at  which,  under  proper  conditions,  imprisonment  could 
be  adjudged,  it  was  held  that  it  must  be  at  the  place  which 
will  be  the  lesser  punishment  rather  than  the  severer  —  with 
those  convicted  of  misdemeanors,  rather  than  with  those  con- 
victed of  higher  crimes.^  Nor  can  a  statute  be  extended  be- 
yond its  grammatical  sense  or  natural  meaning  on  any  plea  of 
the  failure  of  justice.^'  If  the  statute  is  ambiguous,  the  con- 
struction adopted  should  be  that  most  favorable  to  the  ac- 
cused.* Courts  are  authorized  to  inquire  into  and  carry  out 
the  manifest  intention  of  the  legislature ;  but  if  there  is  such 
an  ambiguity  in  a  penal  statute  as  to  leave  reasonable  doubts 
of  its  meaning,  it  is  the  duty  of  a  court  not  to  inflict  the 
penalty.* 

intention  by  mere  conjectiu-e,  but  it 
is  to  collect  it  from  the  object  which 
"the  legislatm-e  had  in  view,  and  the 
expressions  used  which  should  be 
competent  and  proper  to  apprise  the 
commimity  at  large  of  the  rule  which 
it  is  intended  to  prescribe  for  their 
government.  For  although  igno- 
rance of  the  existence  of  a  law  be  no 
excuse  for  its  violation,  yet,  if  this 
ignorance  be  the  consequence  of  an 
ambiguous  or  obscure  phraseology^, 
some  indulgence  is  due  to  it.  It 
should  be  a  principle  of  every  crim- 
inal code,  and  certainly  belongs  to 
ours,  that  no  person  be  adjudged 
gmlty  of  an  offense,  imless  it  be 
created  and  promulgated  in  terms 
wliich  leave  no  reasonable  doubt  of 
their  meaning.  If  it  be  the  duty  of  a 
jury  to  acquit  where  such  doubts  ex- 
ist concerning  a  fact,  it  is  equally  in- 
cumbent on  a  judge  not  to  apply  the 
law  to  a  case  when  he  labors  under 
the  same  uncertainty  as  to  the  mean- 
ing of  the  legislature."  Wright  v. 
BoUes  Woodenware  Co.  50  Wis.  167 ; 
United  States  v.  One  Himdred  Bar- 


1  Dwarris,  634. 

2  Horner  v.  State,  1  Oregon,  267. 

3  Remmiugton  v.  State,  1  Oregon, 
281. 

*  The  Schooner  Enterprise,  1  I*aine, 
32;  Commonwealth  v.  Martin,  17 
Mass.  359. 

*  In  Schooner  Enterprise,  1  Paine, 
32,  Livingston,  J.,  said:  "The  act, 
and  particularly  that  part  of  it  under 
wliich  a  forfeiture  is  claimed,  is 
highly  penal,  and  must  therefore  be 
construed  as  such  laws  always  have 
been  and  ever  should  be.  But  while 
it  is  said  that  penal  statutes  are  to  re- 
ceive a  strict  consti'uction,  nothing 
more  (S  meant  than  that  they  shall 
not,  by  what  may  be  thought  their 
spirit  or  equity,  be  extended  to  of- 
fenses other  than  those  wliich  are 
specially  and  clearly  described  and 
provided  for.  A  court  is  not,  therefore. 
.  .  .  precluded  from  inquiring  into 
the  intention  of  the  legislature.  How- 
ever clearly  a  law  may  be  expressed, 
this  must  ever,  more  or  less,  be  a 
matter  of  inquiiy.  A  court  is  not, 
however,  permitted  to  arrive  at  tliis 


STEICT   C0N8TKUCTI0N.  445 

§  354.  A  penal  statute  should  be  construed  to  cany  out 
the  obvious  intention  of  the  legislature,  and  be  confined  to 
that.  Every  case  must  come  not  only  within  its  letter  but 
Avithin  its  spirit  and  purpose;  but  it  should  be  given  a  ra- 
tional construction.  There  must  generally  be  such  an  act  or 
omission  as  implies  an  actual  and  conscious  infraction  of  duty. 
A  law  which  condemns  to  capital  punishment  one  who  strikes 
his  father  would  not  be  held  applicable  to  one  who  has  shaken 
and  struck  his  father  to  arouse  him  from  a  lethargic  stupor.' 
Where  the  master  of  a  steamboat  was  subjected  to  a  penalty 
for  failing  to  dehver  any  letter  which  should  be  left  "  in  his 
care  or  within  his  power,"  it  was  held  that  there  must  be 
knowledge  of  this  fact,  and  mere  possession  by  the  clerk  of  the 
boat  was  not  enough.^  If  notice  is  required  to  impose  a  duty, 
the  neglect  of  which  is  punishable,  it  must  be  actual  notice, 
and  personally  served.^  Although  to  an  absolute  and  sweeping 
prohibition  of  the  sale  of  intoxicating  liquors,  the  courts  may 
not  imply  an  exception  when  sold  as  a  prescription  for  medi- 
cine ;  *  it  was  said  by  the  court  in  one  case :  *  "  AVe  are  not  to  be 
supposed  as  intimating  that  physicians  and  druggists  would  be 
prohibited  under  such  a  statute  .  .  .  from  the  hojia  fide 
use  of  spirituous  liquors  in  the  necessary  compounding  of 
medicines  manufactured,  mixed  or  sold  by  them.  This  would 
not  be  within  the  evils  intended  to  be  remedied  by  such  pro- 
hibitory enactments,  nor  even  within  the  strict  letter  of  the 
statute." 

§  355.  In  the  very  recent  case  of  Kegina  v.  Tolson "  is,  from 
the  standpoint  of  English  decisions,  a  very  exhaustive  and  in- 
structive discussion  of  the  principle  or  maxim,  actus  non  facii 
reum^  nisi  mens  sit  rea.  The  statute  of  2-i  and  25  Vict.  ch.  100, 
sec.  r.T,  provides  in  these  words :  "  Whoever,  being  married, 
shall  marry  any  other  person  during  the  hfe  of  the  former  hus- 
band or  wife,  shall  be  guilty  of  felony,  punishable  with  penal 

rels    of  Spirits,  2  Abb.  (U.  S.)  305 ;  *  Commonwealth    v.    Kimball,    24 

United  States  v.  Fitty-sLx  Barrels  of  Pick.  366 ;   State  v.   Broun,  31   Me. 

Whiskj',  1  id.  93 ;  United  States  v.  Gar-  522  ;  Woods  v.  State,  36  Ark.  36 ;  38 

relson,  42  Fed.  Rep.  22.  Am.  R.  22 ;  Cai-son  v.  State,  69  Ala, 

1  Smith's  Cora.  §  448.  235. 

2  United  States  v.  Beaty,  Hempst.  5  Carson  v.  State,  supra. 

487.  "  6  L.  R.  23  Q.  B.  Div.  168  (1889) ;  S.  C. 

8  St  Louis  V.  Goebel,  32  Mo.  205.         40  Alb.  L.  J.  250. 


44.6  STRICT   CONSTRUCTION 

servitude  for  not  more  than  seven  years,  or  imprisonment  with 
or  -svithout  hard  labor  for  not  more  than  two  years,"  with  a 
proviso  that  "  nothing  in  this  act  shall  extend  to  any  person 
marrying  a  second  time  whose  husband  or  wife  shall  have  been 
continually  absent  from  such  person  for  the  space  of  seven  years 
last  past,  and  shall  not  have  been  known  by  such  person  to  be 
livino-  within  that  time."  The  husband  of  the  defendant  de- 
serted  her  the  year  following  their  marriage.  She  and  her 
father  subsequently  made  inquiries  about  him,  and  learned 
from  his  brother  and  from  general  report  that  he  had  been  lost 
at  sea.  She  married  again  five  years  after  his  desertion,  and  the 
question  was  considered  whether  a  belief  in  good  faith  and  on 
reasonable  grounds  that  her  husband  was  dead  would  be  a 
good  defense  against  the  charge  of  bigamy  in  contracting  the 
second  marriage.  It  was  decided  in  the  afiirmative.  Wills,  J., 
said :  "  There  is  no  doubt  that  under  the  circumstances  the 
prisoner  falls  within  the  very  words  of  the  statute.  She,  being 
married,  married  another  person  during  the  life  of  her  former 
husband,  and,  when  she  did  so,  he  had  not  been  continually 
absent  from  her  for  the  space  of  seven  years  last  past.  It  is, 
however,  undoubtedly  a  principle  of  English  crimmal  law,  that, 
ordinarily  speaking,  a  crime  is  not  committed  if  the  mind  of 
the  person  doing  the  act  in  question  be  innocent.  'It  is  a 
principle  of  natural  justice  and  of  our  law,'  says  Lord  Kenyon, 
C.  J.,  '  that  actus  nonfacit  reum,  nisi  mens  sit  rea.  The  intent 
and  act  must  both  concur  to  constitute  the  crime.'  ^  The 
guilty  intent  is  not  necessarily  that  of  intending  the  very  act 
or  thing  done,  and  prohibited  by  common  or  statute  law,  but 
it  must  at  least  be  the  intention  to  do  something  wrong.  That 
intention  may  belong  to  one  or  other  of  two  classes.  It  may 
be  \.o  do  a  thing  wrong  in  itself  and  apart  from  positive  law, 
or  it  may  be  to  do  a  thing  merely  prohibited  by  statute  or  by 
common  law,  or  both  elements  of  intention  may  co-exist  with 
respect  to  the  same  deed."  - 

1  Fowler  v.  Padget,  7  T.  R  509,  514.  subject-matter  and  may  be  so  framed 

2  Wills,  J.,  said,  in  continuing  his  as  to  make  an  act  criminal  whether 
opinion :  "  Although  prima  facie  and  there  has  been  any  intention  to  breat 
as  a  general  rule  there  must  be  a  the  law  or  otherwise  to  do  wrong  or 
mind  at  fault  before  there  can  be  a  not.  There  is  a  large  body  of  mu- 
crime,  it  is  not  an  inflexible  rule,  nicipal  law  in  the  present  day  which 
and  a  statute  may  relate  to  such  a  is  so  conceived     By-laws  are  con- 


STRICT   CONSTKUOTION. 


447 


Cave,  J.,  said  in  the  same  case :  "  At  common  la^v  an  hon- 
est and  reasonable  belief  in  the  existence  of  circumstances, 
which,  if  true,  would  make  the  act  for  which  the  person  is 
indicted  an  innocent  act,  has  always  been  held  to  be  a  good 
defense.  This  doctrine  is  embodied  in  the  somewhat  uncouth 
maxim,  'achis  nonfacit  reum,  nisi  mens  sit  rea^  Honest  and 
reasonable  mistake  stands  in  fact  on  the  same  footing  as  ab- 
sence of  the  reasoning  faculty,  as  in  infancy,  or  perversion  of 
that  faculty,  as  in  lunacy.  ...  So  far  as  I  am  aware  it 
has  never  been  suggested  that  these  exceptions  do  not  equally 
apply  to  the  case  of  statutory  offenses  unless  they  are  excluded 
expressl}^  or  by  necessary  implication."  ^ 

Btantly  made  regulating  the  width  of 
thorotigMares,  the  height  of  build- 
ings, the  thickness  of  walls,  and  a 
variety  of  other  matters  necessary 
for  the  general  weKare,  health  or 
convenience,  and  such  by-laws  are 
enforced  by  the  sanction  of  penalties, 
and  the  breach  of  them  constitutes 
an  offense  and  is  a  criminal  matter. 
In  such  cases  it  would,  generally 
speaking,  be  no  answer  to  proceed- 
ings for  infringement  of  the  by-laws 
that  the  person  committing  it  had 
hona  fide  made  an  accidental  miscal- 
culation or  an  eiToneous  measure- 
ment The  acts  are  properly  con- 
strued as  imposing  the  penalty  when 
the  act  is  done,  no  matter  how  inno- 
cently, and  in  such  a  case  the  sub- 
stance of  the  enactment  is  that  a  man 
shall  take  care  that  the  statutory  di- 
rection is  obeyed,  that  if  he  fails  to 
do  so  he  does  it  as  his  peril 

"Whether  an  enactment  is  to  be 
construed  in  this  sense,  or  with  the 
quaUfication  ordinarily  imported  into 
the  construction  of  criminal  statutes, 
that  there  must  be  a  guilty  mind, 
must,  I  think,  depend  upon  the  sub- 
ject-matter of  the  enactment,  and 
the  various  cncumstances  that  may 
make  the  one  consti'uction  or  the 
other  reasonable  or  vmreasonable." 
Citing  and  comparing  Reg.  v.  Sleep, 
L.  &  C.  44 ;  30  L.  J,  (M.  C.)  170 ;  Hearne 


V.  Garton,  2  E.  &  E.  66;  Taylor  v. 
Newman,  4  B.  &  S.  89 ;  Watkins  v. 
Major,  L.  R  10  C.  P.  662;  Reg.  v. 
Bishop,  5  Q.  B.  Div.  259;  Bowman 
V.  Blyth,  7  E.  &  B.  26,  43;  Foster's 
Crown  Law  (3d  ed.)  App.  439,  440; 
Rex  V.  Banks,  1  Esp.  144 ;  Fowler  v. 
Padget,  7  T.  R  509 ;  Reg.  v.  Willmett, 
3  Cox  C.  C.  281 ;  Reg.  v.  Cohen,  8  id. 
41 ;  Reg.  v.  O'Brien,  15  L.  T.  (N.  S.) 
419 ;  Reg.  v.  Turner,  9  Cox  C.  C.  145 ; 
Reg.  V.  Horton,  11  id.  6 TO;  Reg.  v. 
Gibbons,  12  id.  237 ;  Reg.  v.  Prince, 
L.  R.  2  C.  C.  R  154 ;  Reg.  v.  Bennett, 
14  Cox  C.  C.  45 ;  Reg.  v.  Moore,  13  id. 
544. 

1  In  Reg.  v.  Tolson,  supra,  Stephen, 
J.,  said:  "The  principle  involved 
appears  to  me,  when  fully  considered, 
to  amount  to  no  more  than  this.  The 
full  definition  of  every  crime  con- 
tains expressly  or  by  impUcation  a 
proposition  as  to  a  state  of  mind. 
Therefore,  if  the  mental  element  of 
any  conduct  alleged  to  be  a  crime 
is  proved  to  have  been  absent  in  any 
given  case,  the  crime  so  defined  is 
not  comniitted ;  or,  again,  if  a  crime 
is  fully  defined,  nothing  amounts  to 
that  crime  which  does  not  satisfy 
that  definition.  Crimes  are  in  the 
present  day  much  more  accurately 
defined  by  statute  or  othei-wise  tiian 
tliey  formerly  were.  The  mental  ele- 
ment of  most  crimes  is  marked  by  one 


us 


STRICT   CONSTRUCTION. 


A  statute  which  gave  treble  damages  for  conversion  of 
logs  or  kimber  in  certain  cases,  though  broad  enough  to  cover 
any  conversion,  was  restrictively  interpreted  in  pursuance  of 


of  tlie  words  '  maliciously,'  '  fraudu- 
lently,' negligently,'  or  '  knowingly ;' 
but  it  is  the  general,    I    might,   I 
think,  say  the  invariable,  practice  of 
the  legislature  to  leave  unexpressed 
some  of  the  mental  elements  of  crime. 
In  aJI  cases  whatever,  competent  age, 
sanity,  and  some  degree  of  freedom 
from  some  kinds  of  coercion,  are  as- 
snmed  to  be  essential  to  criminality, 
but  I  do  not  believe  they  are  ever 
introduced  into  any  statute  by  which 
any  particular  crime  is  defined.   .  .    . 
"With   regard   to    knowledge  of 
fact,  the  law,  perhaps,  is  not  quite  so 
clear,  but  it  may,  I  think,  be  main- 
tamed,  that  in  every  case  knowledge 
of  fact  is  to  some  extent  an  element 
of  criminality  as  much  as  competent 
age  and  sanity.     To  take  an  extreme 
ilkisti-ation,  can  any  one  doubt  that 
a  man  who,  though  he  might  be  per- 
fectly sane,  committed  what  would 
otherwise  be  a  crime,  in  a  state  of 
somnambuUsm,  be  entitled  to  be  ac- 
quitted?   And  why  is  this?    Simply 
because  he  would  not  know  what  he 
was  doing.     A  mrdtitude  of  iUusti-a- 
tions  might  be  given.     I  will  mention 
one  or  two  glaring  ones.  Levet's  Case, 
1  Hale,  474,  decides  that  a  man  who, 
making  a  thrust  with  a  sword  at  a 
place  where,  upon  reasonable  grounds, 
he  suijposed  a  burglar  to  be,  killed  a 
person  who  was  not  a  burglar,  was 
held  not  to  be  a  felon,  though  he 
might  be  (it  was  not  decided  that  he 
was)  guilty  of  killing  per  infortu- 
nium,   or    possibly    se    defendendo, 
wliich  then  involved  certain  forfeit- 
ures.    In  other  words,  he  was  in  the 
same  situation,  as  far  as  regarded  the 
homicide,  as  if  he  had  killed  a  burg- 
lar.    In  the  decision  of  the  judges  in 
Macnaghten's  Case,   10   C.  &  F.  200, 
it  is  stated  that  if,  imder  an  insane  de- 


lusion, one  man  killed  another,  and 
if    the    delusion    was    such  that    it 
would,  if  ti'ue,  justify  or  excuse  the 
kiUing,  the  homicide  would  be  justi- 
fied or  excused.     This  coxild  hardly  be 
if  the  same  were    not  law  as  to  a 
sane  mistake.     A  bona  fide  claim  of 
right  excuses  larceny,  and  many  of 
the  ofl:enses  against  the  malicious  mis- 
chief act.     Apart,  indeed,  from  the 
present  case,  I  tliink  it  may  be  laid 
down  as  a  general  rule  that  an  alleged 
ofl:ender    is    deemed  to  have    acted 
under  that  state  of  facts  which  he  in 
good  faith  and  on  reasonable  grounds 
believed  to  exist  when  he  did  the  act 
alleged  to  be  an  offensa    I  am  imable 
to  suggest  any  real  exception  to  this 
rule,  nor  has  one  ever  been  suggestetl 
to  ma     A  very  learned  person  sug- 
gested to  me  the  following  case :     A 
constable,  reasonably  beheving  a  man 
to  have  committed  a  murder,  is  justi- 
fied in  killing  liim  to  prevent  Ms  es- 
cape ;  but  if  he  had  not  been  a  con- 
stable he  would  not  have  been  so 
justified,  but  would  have  been  guilty 
of  manslaughter.     Tliis  is  quite  true, 
but  the  mistake  in  the  second  case 
would  be  not  only  a  mistake  of  fact, 
but  a  mistake  of  law  on  the  part  of 
the  homicide  in  supposing  that  he,  a 
private  person,  was  justified  in  using 
as  much  violence  as  a  pubUc  officer, 
whose  duty  is  to  arrest,  if  possible,  a 
person  reasonably  suspected  of  mur- 
der.   The  supposed  homicide  would 
be  in  the  same  position  as  if  his  mis- 
take of  fact  had  been  ti-ue;  that  is, 
he  would  be  guilty,  not  of  murder, 
but  of  manslaughter."    See  State  v. 
Bartiett,  30  jMa  133 ;  The  Brig  Will- 
iam Gray,  1  Paine,  16 ;  United  SUites 
V,  Pearce,  2  McLean,  14 ;  1  Bish.  C.  L. 
g§  226,  227. 


STKICT   CONSTEUCTION.  449 

the  assumed  intention  of  the  legislature  to  punish  only  wilful 
wrong-doing.  It  was  held  that  "  the  evidence  must  satisfy  the 
jury  that  the  conversion  was  not  only  against  the  consent  of 
the  plaintiff,  but  was  attended  by  circumstances  of  bad  faith 
and  intentional  wrong  in  order  to  bring  it  within  the  penal 
provision."  ^  A  statute  ^  imposed  a  penalty  on  any  person 
who  should  take,  kill  or  have  in  his  possession  any  partridges 
between  the  1st  of  February  and  the  1st  of  September.  It 
was  held  that  a  person  having  partridges  in  his  possession 
between  those  two  dates  was  not  Uable  to  the  penalty  if 
the  partridges  had  been  killed  before  the  earhest  day  named, 
as  otherwise  a  man  might  be  hable  to  a  penalty  if  he  lawfully 
killed  a  partridge  on  the  last  moment  of  February  1,  but  had 
it  in  his  possession  on  the  first  moment  of  February  2.^  So 
where  penalties  were  imposed  upon  bakers  who  used  certain 
ingredients  in  bread,*  upon  persons  sending  dangerous  goods 
by  railway,^  or  being  in  possession  of  stores  which  bore  the 
admiralty  mark,^  it  was  held  that  knowledge  was  essential 
to  constitute  any  of  these  offenses.^  A  statute  imposed  a  pen- 
alty on  any  voter  receiving  a  reward  "  to  give  his  vote  "  at  an 
election.  It  was  held  that  this  penalty  was  not  incurred  by 
one  who  received  a  reward  after  he  had  voted.^  A  statute  pro- 
viding that  a  seaman  should  forfeit  his  wages  by  deserting  his 
ship  was  held  not  to  apply  to  one  who  was  treated  with  such 
cruelty  as  justified  him  in  refusing  to  remain  on  board.* 

§  356.  Courts  will  uot  by  strict  construction  defeat  tlie  in- 
tention of  the  law-maker. —  Where  the  intent  is  plain  it  will 
be  carried  into  effect.  It  wiU  not  be  evaded  or  defeated  on  the 
principle  of  strict  construction.  The  principle  will  be  adhered 
to  that  the  case  must  be  brought  within  the  letter  and  spirit 
of  the  enactment,  but  the  intent  of  a  criminal  statute  may  be 

i  Cohn  V.  Neeves,  40  Wis.  393 ;  « Rex  v.  Sleep,  L.  &  C.  44  Corn- 
Wallace  V.  Fincli,  24  Mich.  255 ;  State  pare  Lee  v.  Simpson,  3  C.  B.  871 ;  Hex 
V.  Baker,  47  IVIiss.  95 ;  Malioon  v.  v.  Woodrow,  15  M.  &  W.  404 ;  Reg.  v. 
Greenfield,  52  id  434,  Hai-vey,  L.  R  1  C.  C.  284;  Reg.  v. 

2  2  Geo.  IIL,  cli.  19,  as  amended  by  Dean,  12  M.  &  W.  39. 

39  Geo.  ni.,  cli.  34  '  Wilb.  on  St.  254 

8  Simpson  v.  Unwin,  3  B.  &  Ad  «  Huntingtower  v.  Gardiner,  1  B,  & 

134;  WUb.  on  St  253.  C.  297. 

<Core  V.  James,  L.  R.  7  Q.  B.  135.  !>  Edward  v.  Ti-evellick,  4  E.  &  B. 

SHearne  v.  Gai'ton,  2  E.  &  E.  66.  59. 
29 


450  STRICT   CONSTRUCTION. 

ascertained  from  a  consideration  of  all  its  provisions,  and  tLat- 
intent  will  be  carried  into  effect.  Such  statutes  will  not  bo 
construed  so  strictly  as  to  defeat  the  obvious  intention.'  The 
principle  of  strict  construction  does  not  allow  a  court  to  make 
that  an  offense  which  is  not  such  by  legislative  enactment ; 
but  this  does  not  exclude  the  application  of  common  sense  to 
the  terms  made  use  of  in  an  act  in  order  to  avoid  an  absurdity 
which  the  legislature  ought  not  to  be  presumed  to  have  in- 
tended.2  This  was  said  of  a  statute  providing  for  the  punish- 
ment of  any  person  who  should  knowingly  and  wilfully  receive, 
conceal  or  dispose  of  any  human  body  or  the  remains  thereof, 
which  shall  have  been  dug  up,  removed  or  carried  away,  etc., 
"not  being  authorized  by  the  selectmen  of  any  town  in  this 
commonwealth."  The  court  said :  "  Taken  strictly  without  ref- 
erence to  the  subject-matter  and  the  manifest  intention  and  ob- 
ject of  the  legislature,  it  would  appear  that  in  order  to  sustain  an 
indictment  on  the  statute  it  must  be  averred  and  proved  that 
the  board  of  health  or  selectmen  of  no  town  in  the  common- 
wealth had  given  license  to  do  the  act  complained  of.  The 
consequence  would  be,  as  oral  testimony  alone  can  be  admitted 
on  criminal  trials  of  facts  provable  by  witnesses,  that  the  offi- 
cers of  every  town  to  the  number  of  three  or  four  hundred 
must  be  summoned  to  give  their  personal  attendance  in  the 
court  where  such  prosecution  is  pending.  We  hazard  nothing 
in  saying  that  the  legislature  never  intended  such  an  absurd- 
ity." It  was  held  that  "  any  town  "  had  reference  to  the  town 
within  which  the  offense  was  committed.  In  the  confiscation 
act  of  congress  of  1861  property  used  in  aiding  or  promoting 
the  rebellion  was  declared  lawful  subject  of  prize  and  capture 
Avherever  f  ound.^  In  United  States  v.  Athens  Armory  *  the 
court  say :  "  Limit  the  term  '  prize '  or  '  capture '  as  here  em- 
ployed to  a  strict  technical  import  and  the  statute  fails  of  its 
object  and  becomes  an  absurdity."  Therefore,  having  in  view 
that  the  purpose  of  the  act  was  to  make  it  "•  one  of  the  means 
to  suppress  the  rebellion,"  these  words  were  held  not  to  limit 
the  operation  of  the  act  to  property  taken  at  sea.^    A  camp- 

1  Ante,  §  349.  *  2  Abb.  (U.  S.)  129,  135. 

2  Commonwealth  v.  Loring,  8  Pick.        *  United  States  v.  Athens  Armory, . 
373.  35  Ga.  344 

812U.  S.  Stats.  atL.p.  319. 


STKICT   CONSTEUOTION.  451 

meeting  or  a  temporary  encampment  by  a  denomination  of 
Christians  for  the  purpose  of  religious  exercises  is  "  a  place 
set  apart  for  the  worship  of  Almighty  God  "  within  the  intent 
of  an  act  prohibiting  the  retailing  of  spirituous  liquors  within  a 
certain  distance  of  such  a  place.^  "  Trade  "  has  been  held  to  in- 
clude "  cod-fishery."  2  To  persuade  a  slave  to  leave  was  held 
"  to  aid  him  to  depart." »  A  vessel  was  held  "  at  sea  "  when  she 
was  without  the  limits  of  any  port  or  harbor  on  the  sea  coast.* 
But  under  a  statute  which  provides  a  penalty  "  if  any  person 
shall  wilfully  or  maliciously  kill,  maim,  beat  or  wound  any 
horses,  cattle,  goats,  sheep  or  swine,  or  shall  wilfully  injure  or 
destroy  any  other  property  of  another,"  a  dog  was  held  not 
included  in  the  denomination  of  "  other  property."  ^  It  was 
inferred  from  the  use  of  the  words  "  injure  or  destroy  "  with  ref- 
erence to  the  property  designated  by  the  phrase  "  any  other 
property,"  that  this  latter  expression  was  intended  to  include 
only  inanimate  property  to  which  the  terms  "  kill,"  "  maim," 
"  wound,"  etc.,  could  not  properly  be  appHed.  It  was  also 
said :  "  Nor  do  they  [dogs]  come  within  either  class  or  descrip- 
tion of  the  animals  which  are  mentioned.  They  are  not  re- 
garded by  law  as  being  of  the  same  intrinsic  value  as  property 
as  the  animals  enumerated,  and  cannot,  we  think,  be  brought 
within  the  prohibition  under  the  general  expression  '  any  other 
property '  by  intendment." 

§  357.  Under  a  statute  prohibiting  any  man  marrying  "  his 
brother's  wife,"  marrying  his  brother's  widow  is  an  offense.* 
An  act  changing  the  venue  of  prosecutions  for  offenses  com- 
mitted on  board  any  vessel  "  navigating  "  any  river  within 
the  state  was  held  applicable  to  a  vessel  so  engaged,  though  at 
anchor  at  the  time  the  offense  was  committed.''  "  Where 
words  are  general,"  said  Story,  J.,  "  and  include  various  classes 
of  persons,  I  know  of  no  authority  which  would  justify  the 
court  in  restricting  them  to  one  class,  or  in  giving  them  the 
narrowest  interpretation,  when  the  mischief  to  be  redressed 
by  the  statute  is  equally  applicable  to  all  of  them.    And  where 

1  State  V.  Hall,  2  Bailey,  151.  '■>  State  v.  Marshall,  13  Tex.  53. 

2  The  Schooner  Nymph,  1   Sumn.        « Commonwealth  t,   Perryman,   2 
516.  Leigh,  717, 

» Crosby  v.  Hawthorn,  25  Ala.  221.        "People  v.  Hulse,  3  Hill,  309. 
*  The  Schooner  Harriet,  1  Story,  251. 


452  STKICT   CONSTEUCTION. 

a  word  is  used  in  the  statute  which  has  various  known  sig- 
nifications, I  know  of  no  rule  that  requires  the  court  to  adopt 
one  in  preference  to  another  simply  because  it  is  more  re- 
strained, if  the  objects  of  the  statute  equal  the  largest  and 
broadest  sense  of  the  word.  In  short,  it  appears  to  me  that 
the  proper  course  in  all  these  cases  is  to  search  out  and  follow 
the  true  intent  of  the  legislature,  and  to  adopt  that  sense  of 
the  words  which  harmonizes  best  with  the  context  and  pro- 
motes in  the  fullest  manner  the  apparent  pohcy  and  objects  of 
the  legislature."  ^  A  statute  made  robbery  a  capital  offense, 
when  the  robber  is,  "  at  the  time  of  committing  such  assault, 
armed  with  a  dangerous  weapon,  with  intent  to  kill  or  maim 
the  person  so  assaulted  and  robbed."  To  the  contention  that, 
to  constitute  the  crime  of  robbery  a  capital  offense  within  this 
statute,  it  must  be  proved  that  there  was  an  absolute  intent  to 
kill  or  maim  the  party  robbed,  whether  the  robbery  could  be 
accomplished  without  killing  or  maiming  or  not,  the  court 
said :  "  If  a  statute,  creating  or  increasing  a  penalty,  be  capable 
of  two  constructions,  undoubtedly  that  construction  which 
operates  in  favor  of  life  or  liberty  is  to  be  adopted ;  but  it  is 
not  justifiable  in  this,  any  more  than  in  any  other  case,  to  ini- 
agine  ambiguities,  merely  that  a  lenient  construction  may  be 
adopted.  If  such  were  the  privilege  of  the  court,  it  would  be 
easy  to  obstruct  the  public  will  in  almost  every  statute  en- 
acted ;  for  it  rarely  happens  that  one  is  so  precise  and  exact 
in  its  terms  as  to  preclude  the  exercise  of  ingenuity  in  raising 
doubts  about  its  construction."  It  was  held  to  be  sufficient 
that  the  party  be  armed  with  a  dangerous  weapon  with  intent 
to  kill  or  maim  the  party  assaulted  by  him,  in  case  such  killing 
or  maiming  be  necessary  to  his  purpose  of  robbing,  and  that 
he  have  the  power  of  executing  such  intent.-  Where  for  a 
specified  offense  the  statute  provides  that  the  person  convicted 
shall  be  fined  not  less  than  $100,  the  construction  is  not  to  be 
so  strict  as  to  hold  that  a  fine  is  not  authorized  above  that 
sum.  The  court  in  such  a  case  held  that  the  exclusion  of  one 
subject  or  thing  is  the  inclusion  of  aU  other  things.  "  "When 
the  legislature,"  say  the  court,  "in  this  case,  excluded  the 
power  of  the  court  to  impose  a  fine  of  less  than  $100,  it,  by 

1  United  States  v.  Winn,  3  Sumn.        2  Commonwealth    v.    Martin,    17 
209.  Mass.  359. 


6TKICT   CONSTKUCTION.  463 

implication,  authorized  the  exercise  of  power  to  impose  a  fine 
for  more  than  that  sum.  It  fixed  the  minimum,  but  fixed  no 
maximum."  ^ 

§  358.  What  statutes  are  penal. —  Among  penal  laws  which 
must  be  strictly  construed,  those  most  obviously  included  are 
all  such  acts  as  in  terms  impose  a  fine  or  corporal  punishment 
under  sentence  in  state  prosecutions,  or  forfeitures  to  the  state 
as  a  punitory  consequence  of  violating  laws  made  for  preser- 
vation of  the  peace  and  good  order  of  society.  But  these  are 
not  the  only  penal  laws  which  have  to  be  so  construed.  There 
are  to  be  included  under  that  denomination  also  aU  acts  which 
impose  by  way  of  punishment  any  pecuniary  mulct  or  dam- 
ages beyond  compensation  for  the  benefit  of  the  injured  party, 
or  recoverable  by  an  informer,  or  which,  for  like  purpose,  mi- 
pose  any  special  burden,  or  take  away  or  impair  any  privilege 
or  right.'^ 

An  act  which  made  a  tender  of  bills  emitted  by  the  con- 
tinental congress  a  bar  to  any  future  demand  of  a  debt  was 
held  highly  penal,  and  not  to  be  extended  beyond  the  strict 
import  of  its  language.'  A  law  prohibited  the  circulation  or 
passing  of  "  tickets  "  under  penalty.  The  court  held  that  did  not 
apply  to  a  man  giving  a  due-bill  or  other  written  evidence  of 
a  debt.  "  A  penal  statute,"  say  the  court,  "  taking  away  or 
abridging  the  right  of  individuals  to  give  or  receive  a  written 
acknowledgment  of  a  debt  due,  or  a  promise  to  pay  a  debt,  in 
money  or  goods,  ought  to  be  very  plain  and  explicit  in  its 
terms ;  and  a  party  seeking  to  recover  the  penalty  ought  to 
show  a  case  clearly  and  distinctly  within  the  provisions  of  the 
statute."  ^  A  statute  which  subjects  a  mortgagee  to  a  penalty 
for  refusal  to  discharge  a  mortgage  will  be  construed  strictly ; 

1  Hankins  v.  People,  106  111.  628.  Austin,  21  IMich.  390 ;  Henderson  v. 

2  AUen  V.  Stevens,  29  N.  J.  L.  509 ;  Sherborne,  2  M.  &  W.  236 ;  Mer- 
Cole  V.  Groves,  134  Mass.  471 ;  Cam-  chants'  Bank  v.  BlLss,  13  Abb.  Pr.  225 ; 
den,  etc.  R.  R.  Co.  v.  Briggs,  22  N.  J.  Titiisville's  Appeal,  108  Pa.  St  600 ; 
L.  623 ;  Read  v,   Stewart,  129  Mass.  JMarston  v.  Tiyon,  id  270. 

407 ;  Bi-eitung  v.  Lindauer,  37  IMich.        3  Shot^vell's  Ex'r  v.  Dennman,  1 N. 

217 ;  Cumberland,  etc.  Canal  v.  Hitch-  J.  L.  174 ;  Suffolk  Bank  v.  Worcester 

ings,  57  Me.  14G ;  Reed  v.  Northfield,  Bank,  5  Pick.  106. 

13  Pick.  96;  Palmer  v.  York  Bank.        *  Allaire  v.  Howell  Works  Co.  14  N. 

18    Me.    166 ;    Bayard    v.   Smith,   17  J.  L.  21, 23. 

Wend.  88 ;  Bay  City,  etc.  R  R  Co.  v. 


454:  STRICT   CONSTKUCTION. 

the  requirement  is  dependent  upon  a  full  performance  of  the 
conditions  of  the  instrument.'  It  will  not  be  applied  to  the 
assignee  of  a  mortgage.^  A  similar  rule  of  strict  construction 
has  been  applied  to  an  act  imposing  a  penalty  for  delinquency 
in  discharging  a  satisfied  judgment.*  An  act  gave  treble  dam- 
ages for  waste  committed  on  land  pending  a  suit  for  its  recov- 
ery. It  was  held  highly  penal,  and  therefore  to  be  limited  in 
its  application  to  the  object  the  legislature  had  in  view ;  it 
was  necessary  to  aver  a  case  within  its  terms.*  An  act  giving 
the  party  injured  an  action  to  recover  a  penalty  imposed  on  a 
public  officer  for  takiug  excessive  fees  was  held  a  penal  one, 
and,  being  construed  strictly,  was  inapplicable  to  one  who  took 
the  illegal  fees  after  the  expiration  of  his  term  for  services 
performed  while  in  office.* 

§  359.  Statutes  which  provide  a  penalty  recoverable  by  the 
party  aggrieved  are  remedial  as  well  as  penal.  Hence  two 
diverse  principles  have  some  application:  that  of  requiring 
strict  construction  on  account  of  the  penalty,  and  that  of  lib- 
eral construction  to  prevent  the  mischief  and  advance  the 
remedy.  Where  a  penalty,  like  double  damages  or  any  other 
form  of  pecuniary  mulct  recoverable  by  the  party  injured, 
is  the  only  remedial  instrumentality,  the  act  as  to  that  party 
is  remedial  only  in  the  same  sense  that  aU  punitory  laws  are 
so  —  for  the  benefit  of  the  public  at  large.  The  courts  look 
with  no  favor  upon  the  penalty,  but  incline  against  it.^  They 
will  only  permit  it  to  be  recovered  upon  a  case  which  faUs 
both  within  the  letter  and  spirit  of  the  act.''  They  will  not 
permit  a  recovery  of  it  in  a  case  not  within  the  letter,  merely 
because  it  is  not  excluded  by  it  and  is  within  the  mischief 
intended  to  be  corrected.  In  Sickles  v.  Sharp  "^  the  court  sa}^ : 
"The  rule  that  penal  statutes  are  to  be  strictly  construed, 
when  they  act  on  the  offender,  and  inflict  a  penalty,  admits 
of  some  qualification.  In  the  construction  of  statutes  of  this 
description  it  has  been  often  held  that  the  plain  and  manifest 

1  Stx)iie  V.  Lannon,  6  Wis.  497.  ^  Aechternaclit    v.    Watmough,    8 

2  Grooms  v.  Hannon,  59  Ala.  510.  Watts  &  S.  162. 

3  Marston  v.  Tryon,  108  Pa.  St.  270.  **  Renf roe  v.  Colquitt,  74  Ga.  618 ; 
*  Reed  v.  Davis,  8  Pick.  514.    See  Farmers'  &  Mechanics'  Nat  Bank  v. 

Bay  City,  etc.  R.  R.  Co.  v.  Austin,  21     Bearing,  91  U.  S.  29. 
Mich.  390.  '  Ante,  §  348. 

8 13  Jolm.  497. 


STKICT   C0N8TEUCTI0N.  45o 

intention  of  the  legislature  ought  to  be  regarded.  A  stat- 
ute which  is  penal  to  some  persons,  provided  it  is  henejlcial 
generally,  may  he  equitably  construed^  The  italicised  sentence 
is  too  general ;  if  applied  in  its  full  scope  it  Avould  leave  noth- 
ing for  strict  construction.  The  penalty  was  recovered  in  that 
case  for  an  act  held  to  be  within  the  strict  letter. 

§  360.  In  Farmers'  &  Mechanics'  JS^ational  Bank  v.  Bear- 
ing/ it  was  said  by  the  court  that  the  thirtieth  section  of  the 
national  bank  act. "  is  remedial  as  well  as  penal,  and  is  to  be 
liberally  construed  to  effect  the  object  congress  had  in  view 
in  enacting  it."  Usury  had  been  taken  by  a  bank  doing  busi- 
ness in  New  York,  and  a  forfeiture  of  the  whole  debt  had 
been  adjudged  in  accordance  Avith  the  local  law.  This  was 
held  erroneous ;  section  30  prescribes  the  exclusive  and  uni- 
form penalty  —  that  is,  the  entire  interest  which  the  note, 
bill  or  other  evidence  of  debt  carries  vsdth  it,  or  which  has 
been  agreed  to  be  paid  thereon,  when  the  rate  knowingly  re- 
ceived, reserved  and  charged  by  a  national  bank  is  in  excess 
of  that  allowed  by  that  section.  The  court  emphasized  the 
rule  of  strict  construction,  and  the  whole  judicial  argument 
is  toward  a  mUder  view  of  the  law  than  that  taken  by  the 
state  court,  whose  decision  was  reversed. 

The  true  sense  in  which  the  section  in  question  was  remedial 
and  to  be  liberally  construed  was  probably  declared  in  Ordway 
V.  Central  National  Bank  of  Baltimore.^  An  action  was  brought 
in  the  state  court  for  the  forfeiture  declared  by  that  section. 
The  question  was  whether  it  was  recoverable  in  that  court. 
Recovery  there  was  sustained.  The  court  by  Alvey,  J.,  say : 
"  The  cause  of  action  is  a  forfeiture  or  penalty  of  a  civil  nat- 
ure, for  the  exacting  and  taking  of  usurious  interest  upon 
money  loaned,  and  the  remedy  given  by  the  statute  is  by  a 
private  civil  action  of  debt  to  the  party  grieved.  The  gov- 
ernment or  the  public  is  not  concerned  with  it.  It  is,  there- 
fore, a  private  right  pursued  by  a  private  civil  action.  And 
it  has  been  decided  that  the  section  upon  which  the  action  is 
founded  is  remedial  as  well  as  penal,  and  is  to  be  liberally 
•  construed  to  effect  the  object  which  congress  had  in  view  in 
enacting  it."  ^    The  hberaUty  of  construction  relates  to  the 

1  91  U.  S.  29,  35.  s  Citing  Faxmei-s',  etc.  Nat  Bank  v. 

-  47  M(L  217.  Deuring-,  mpva. 


456  STKICT    CONSTRUCTION. 

remedy  and  not  to  the  provision  giving  the  penalty.^  Park,  J., 
in  Gorton  v.  Champneys,-  speaking  of  a  statute,  said :  "  It  is  a 
law  to  prevent  and  suppress  frauds ;  and  it  is  a  clear  and  funda- 
mental rule  in  construing  statutes  against  frauds,  that  they 
are  to  be  liberally  and  beneficially  expounded ;  and  in  our  best 
text-book  this  position  is  to  be  found :  that  where  the  statute 
acts  against  the  offender  and  inflicts  a  penalty,  it  is  then  to  be 
construed  strictly ;  but  where  it  acts  upon  the  offense,  by  set- 
tino;  aside  the  fraudulent  transaction,  here  it  is  to  be  construed 
liberally."  ^    There  is,  therefore,  a  class  of  statutes  which  is 
in  part  remedial  and  to  be  liberally  construed,  to  advance  the 
remedy,  and  in  part  penal,  and  to  that  extent,  as  it  operates 
against  the  offender,  to  be  construed  like  other  penal  laws, 
strictly.      The  liberal  construction  allowed  to  advance  the 
remedy  is  well  illustrated  by  the  case  of  Frohock  v.  Pattee.* 
A  statute  provided  that  "  any  person  who  shall  knowingly  aid 
or  assist  any  debtor  or  prisoner  in  any  fraudulent  concealment 
or  transfer  of  his  property  to  secure  the  same  from  creditors, 
etc.,  shall  be  answerable  in  a  special  action  on  the  case  to  any 
creditor  who  may  sue  for  the  same  in  double  the  amount  of 
the  property  so  fraudulently  transferred ;  not,  however,  exceed- 
ing double  the  amount  of  such  creditors'  just  debt  or  de- 
mand."    It  appeared  that  a  creditor  had  brought  a  suit  and 
recovered  on  this  provision.     The  question  was  whether,  in 
the  absence  of  an  issue  in  regard  to  the  amount  of  that  recov- 
ery, it  was  a  bar  to  the  present  suit,  as  would  be  its  effect  if 
it  were  treated  as  a  penal  statute  proper.     It  was  held  not  to 
be  such  a  statute,  and  therefore  the  former  judgment  in  favor 
of  one  creditor  only  barred  another  to  the  extent  of  the  re- 
covery towards  twice  the  value  of  the  property  fi-audulently 
conveyed.     Such  actions  are  not  criminal  actions  and  are  not 
governed  by  the  same  rules.     A  decision  for  a  defendant  is 
not  an  acquittal  which  is  final  within  the  protection  of  the 
constitutional  provision  against  being  put  twice  in  jeopardy. 

1  See  Abbott  v.  Wood,  22  Me.  541.  Steam  Tug,  6  Cal.  462 ;  Ellis  v.  Whit- 

2 1  Bing.  287,  300.  lock,  10  Mo.  781 ;  Hyde  v.  Cogan,  2 

5  See  Hahn  v.  Salmon,  20  Fed.  Rep.  Doug.  699,  706 ;  Abbott  v.  Wood,  22 

801 ;  Gumming  v.  Fryer,  Dudley,  182 ;  Me.  541. 

Smith  V.  Moflfat,  1  Barb.  65 ;  Sharp  ■!  38  Ma  103. 

V.  Mayor,  etc.  31  id.  577 ;  White  v. 


8TKICT   CONSTRUCTION.      •  457 

A  defeated  plaintiff  may  move  for  a  new  trial  as  in  other  civil 
cases.^  Where  a  statute  gives  penal  damages  to  the  injured 
party  they  are  part  of  his  indemnity  .^  And  where  the  common- 
law  action  for  the  injury  survives  and  is  therefore  assignable, 
the  penal  damages  given  by  statute  are  also  assignable.^ 

§  361.  Revenue  laws. —  There  are  many  cases  in  the  federal 
courts  in  which  it  has  been  declared  that  the  revenue  laws 
are  not  to  be  regarded  as  penal  in  the  sense  that  requires 
them  to  be  strictly  construed  in  favor  of  the  defendant,  though 
they  impose  penalties  and  forfeitures.  They  have  even  been 
declared  remedial  in  character,  as  intended  to  prevent  fi-aud, 
suppress  public  wrong  and  to  promote  the  public  good.^  These 
declarations  tend  to  establish  an  exceptional  and  arbitrary 
rule  in  this  class  of  cases,  at  war  with  elementary  principles 
universally  recognized  in  other  cases.  Other  penal  laws  are 
made  to  punish  and  prevent  fi^auds,  as,  for  example,  statutes 
providing  a  punishment  for  obtaining  money  or  goods  under 
false  pretenses.  All  penal  laws  are  intended  to  promote  the 
public  good.  Strict  construction  is  based  on  humane  consid- 
erations which  are  applicable  with  more  or  less  force  in  aU 
cases  where  a  statute  provides  for  punishment.  These  consid- 
erations are  as  pertinent  to  acts  which  are  supposed  to  be  in- 
fractions of  a  revenue  law  as  to  other  criminal  acts ;  as  pertinent 
when  the  government  is  the  sufferer  as  when  a  private  citizen 
is  injured ;  as  well  when  the  offense  is  odious  fraud  as  when  it 
is  atrocious  violence.  These  declarations,  so  frequently  made 
in  revenue  cases,  have  not  been  practically  followed  by  any  not- 
able departures  from  the  strict  rule.  And  they  have  generally 
been  quahfied  by  the  enunciation  of  the  sound  principle  appli- 
cable to  aU  penal  provisions  that  they  are  to  be  construed  ac- 

1  Stanley  v.  Wharton,  9  Price,  301.  Tons  of   Coal,  6  Biss.   379 ;  United 

2  Reed  v.  Northfield,  13  Pick.  94.  States  v.  Cases   of  Cloths,  Crabbe, 

3  Gray  v.  Bennett,  3  Mete  522;  356;  United  States  v.  Barrels  of  High 
Brandon  v.  Pate,  2  U.  Black.  308 ;  Wines,  7  Blatcli.  459 ;  United  States 
Brandon  v.  Sands,  2  Ves.  Jr.  514.  v.  Ohiey,  1  Abb.  (U.  S.)  275 ;  United 

♦  AVood  V.   United  States,  16  Pet  States  v.  Barrels  of  Spirits,  2  id  305 ; 

342 ;  Taylor  v.  United  States,  3  How.  United  States  v.   Hodson,  10  Wall. 

197 ;  CUquot's  Champagne,  3  WalL  395 ;  United  States  v.  Breed,  1  Siimn. 

114;   Twenty -eight    Cases,    In  re,  2  159;  United  States  v.  One  Hiindi-ed 

Ben.   63 ;  United  States  v.  WiUetts,  and  Twenty-nine  Pr.ckages,  2  Am.  L. 

5  Ben.  220 ;   United  States  v.  Tliree  Reg.  (N.  S.)  419. 


458 


STRICT    CONSTKUCTION. 


cording  to  the  true  intent  and  meaning  of  their  terms,  and 
when  the  legislative  intention  is  thus  ascertained,  that  and  that 
only  is  to  be  the  guide  in  interpreting  them.^  No  case  has 
arisen  in  which  a  penalty  or  forfeiture  has  been  sustained  for 
being  within  the  supposed  intention  of  the  statute  when  not 
within  its  terms. 

It  was  declared  in  United  States  v.  "Wigglesworth,^  that  stat- 
utes levying  taxes  or  duties  on  subjects  or  citizens  are  to  be 
construed  most  strongly  against  the  government,  and  in  favor 
of  the  subjects  or  citizens,  and  their  provisions  are  not  to  be  ex- 
tended by  impHcation  beyond  the  clear  import  of  the  language 
used,  or  to  enlarge  their  operation  so  as  to  embrace  matters 
not  specifically  pointed  out,  although  standing  upon  a  close 
analogy.'  Blackstone  laid  down  the  rule  that  penal  statutes 
must  be  construed  strictly.  Then  he  proceeds  to  say :  "  Stat- 
utes against  frauds  are  to  be  Uberally  and  beneficially  ex- 
pounded.    This  may  seem  a  contradiction  to  the  last  rule; 


1  Taylor  v.  United  States,  3  How. 
197 ;  United  States  v.  Breed,  1  Sumn. 
159 ;  United  States  v.  Distilled  Spir- 
its, 10  Blatchf.  428,  433. 

2  2  Story,  369. 

3  The  characterLzing  of  such  laws 
as  remedial  ha.s  not  escaped  criticism. 
]VIr.  Cooley,  in  his  work  on  Taxation, 
says :  "It  seems  highly  probable  that 
the  word  remedial  has  been  employed 
by  the  learned  judge  in  this  case 
[United  States  v.  Hodson,  siipra\  in  a 
sense  differing  from  that  in  which  it 
is  commonly  used  in  the  law.  A  re- 
medial law,  as  the  term  is  generally 
employed,  is  sometliing  quite  differ- 
ent from  the  revenue  laws.  An  au- 
thor of  accepted  authority  expresses 
the  ordinary  understanding,  when  he 
defines  a  remedial  statute  to  be  '  one 
which  supphes  such  defects  and 
abridges  such  superfluities  of  the 
common  law  as  may  have  been  dis- 
covered (1  Black.  Com.  86) ;  such  as 
may  arise  either  from  the  imperfec- 
tion of  all  human  laws,  from  change 
of  time  and  circumstances,  from  mis- 


takes and  rmadvised  determinations 
of  unlearned  (or  even  learned)  judges, 
or  from  any  other  cause  whatever; 
and  tills  being  done  either  by  enlarg- 
ing the  common  law  where  it  was 
too  naiTOW  and  circumscribed,  or  by 
resti-aining  it  where  it  was  too  lax 
and  luxuriant,  has  occasioned  another 
subordinate  division  of  remedial  acts 
into  enlarging  and  restraining  stat- 
utes. So  it  seems  that  a  remedial 
statute  may  also  have  its  apphcation 
vo  and  effect  upon  other  existing 
statutes,  and  give  a  party  injured  a 
remedy ;  and  for  a  more  general  def- 
inition, it  is  a  statute  giving  a  party 
a  mode  of  remedy  for  a  wrong  where 
he  had  none  or  a  different  one  be- 
fore.'"  Potter's  Dwarris  on  St  78. 
He  concludes  that  in  applying  the 
word  "  remedial "  to  tax  laws  it  was 
used  in  some  pohtical  or  special, 
rather  than  in  the  strict  legal,  sense, 
and  that  it  was  not  the  intention  of 
the  court  to  overrule  the  opinion  of 
Mr.  Justice  Story  in  "VViggleworth's 
case.     Cooley  on  Tax.  204,  205. 


STRICT   CONSTRUCnON.  459 

most  statutes  against  frauds  being-  penal.     But  this  difference 
is  to  be  taken :  Where  the  statute  acts  upon  the  offender  and 
inflicts  a  penalty,  as  the  pillory  or  a  fine,  it  is  then  to  be  taken 
strictly ;  but  when  the  statute  acts  upon  the  offense,  by  set- 
ting aside  the  fraudulent  transaction,  here  it  is  to  be  construed 
liberally." '     Revenue  laws  are  intended  to  raise  money  for  the 
support  of  the  government.    If  they  contain  provisions  for  pen- 
alties and  forfeitures  these  are  ancillary  to  that  object ;  but  they 
are  not  for  that  reason  to  be  necessarily  construed  in  point  of 
strictness  by  the  same  rule.     As  penal  laAvs,  no  reason  is  per- 
ceived why  the  same  rule  of  strict  construction  should  not  be 
applied  to  them  as  to  other  such  laws.     Mr.  Dwarris  remarks 
that,  "  By  the  use  of  ambiguous  clauses  in  laws  of  that  sort  the 
legislature  would  be  laying  a  snare  for  the  subject,  and  a 
construction  which  conveys  such  an  imputation  ought  never 
to  be  adopted.     Judges,  therefore,  where  clauses  are  obscure, 
will  lean  against  forfeitures,  leaving  it  to  the  legislature  to 
correct  the  evil,  if  there  be  any.     "With  this  view,  the  ship 
registry  acts,  so  far  as  they  apply  to  defeat  titles  and  to  create 
forfeitures,  are  to  be  construed  strictly,  as  penal,  and  not  lib- 
erally, as  remedial,  laws.     In  like  manner,  in  the  revenue  laws, 
where  clauses  inflicting  pains  and  penalties  are  ambiguously 
or  obscurely  worded,  the  interpretation  is  ever  in  favor  of  the 
subject ;  '  for  the  plain  reason,'  said  Heath,  J.,  in  Hubbard  v. 
Johnstone,  '  that  the  legislature  is  ever  at  hand  to  explain  its 
own  meaning,  and  to  express  more  clearly  what  has  been  ob- 
scurely expressed.'  "  ^ 

§  362.  Statutes  which  impose  burdens  —  Taxes. — Acts  for 
taxation  of  persons  or  property  are  prominent  in  this  category. 

1 1  BL  Com.  38.  f orf eitiire  of  propei-tj-  for  the  mere  m.- 
'  3  Taunt.  177 ;  Dwarris  on  St  641.  dul<;"ence  of  a  fraudulent  intent  never 
Mr.  Cooley  thus  comments  on  tliis  carried  into  effect ;  a  f orfeitiu-e,  too, 
point :  "  In  the  state  revenue  laws  the  which  may  be  visited  upon  a  pur- 
penal  provisions  are  few,  and  by  no  cliaser  who  has  bought  in  good  faith, 
means  severe.  In  the  federal  revenue  antl  ^\•ithout  any  suspicion  of  tlie  in- 
laws some  of  them  are  of  a  severity  tended  fraud.  Henderson's  Distilled 
very  seldom  to  be  met  with  in  penal  Spirits,  14  WalL  44.  If  such  provis- 
statutes,  and  only  to  be  j  ustified  by  the  ions  are  to  be  construed  hberally,  there 
supposed  impossibility  of  collecting  is  no  reason  why  an\'  other  penal 
the  revenue  without  them.  In  illus-  provisions  whatever  should  not  be." 
tration  of  what  is  here  said,  reference  Caoley  on  Taxation,  208. 
need  only  to  be  made  to  the  case  of 


4:60  STRICT   CONSTETJCTION. 

The  poTver  to  tax  is  sovereign,  and  its  exercise  needful  to  sup- 
ply the  government  with  money  necessary  for  its  support. 
"When  limited  to  the  accomplishment  of  this  object  it  is  benef- 
icent, but  since  it  is  so  unlimited  in  force  and  so  searching  in 
extent  that  courts  recognize  no  restrictions  except  such  as  rest 
in  the  discretion  of  the  authority  which  exercises  it ;  since  it 
reaches  to  every  trade  and  occupation,  to  every  object  of  in- 
dustry, use  or  enjoyment,  to  every  species  of  possession,  and 
imposes  a  burden  which  in  case  of  failure  to  discharge  it  may 
be  followed  by  summary  seizure  and  sale  or  confiscation  of 
property ;  since  no  attribute  of  sovereignty  is  more  pervading 
or  affects  more  constantly  and  intimately  all  the  relations  of 
life,^  and  involves  the  power  to  destroy,  and  may  neutralize 
the  power  to  foster  and  create,^  statutes  enacted  in  the  exer- 
cise of  the  taxing  power  are  construed  with  some  degree  of 
strictness.     It  is  a  special  authority,  and  in  its  exercise  the 
citizen  is  deprived  of  his  property.     However  meritorious  the 
purpose  for  which  such  a  power  is  granted,  the  courts  will  be 
sedulous  in  confining  it  within  the  boundaries  the  legislature 
have  thought  fit  to  prescribe.*    The  supreme  court  of  Is'ew 
Jersey  say :  "  In  laying  the  burden  of  taxation  upon  the  citi- 
zens of  the  state,  while  it  must  be  the  object  of  every  just 
system  to  equalize  this  charge  by  a  fair  apportionment  and 
levy  upon  the  property  of  all,  it  is  equally  the  duty  of  the 
courts  to  see  that  no  one,  by  mere  technicaUties  which  do  not 
affect  his  substantial  rights,  shall  escape  his  fair  proportion  of 
the  public  expense  and  thus  unpose  it  upon  others.     A  lib- 
eral construction  must  therefore  be  given  to  aU  tax  laws 
for  public  purposes,  not  only  that  the  ofiicers  of  the  govern- 
ment may  not  be  hindered,  but  also  that  the  rights  of  all  tax- 
payers may  be  equally  preserved."  *    "  If  it  be  a  matter  of 

1  Cooley  on  Const  Lim.  479 ;  Litch-  author  is  apposite,  and  expresses  the 
Held  V.  Vernon,  41  N.  Y.  123, 140,  143 ;  law  with  felicity  and  accui-acy :  "In 
Henry  v.  Chester,  15  Vt  460.  the  construction  of  the  revenue  laws 

2  McCuUoch  V.  Maryland,  4  Wheat,  special  consideration  is  of  course  to 
431.  be  had  of  the  purpose  for  which  they 

3  Powell  V.  Tuttle,  3  N.  Y.  396,  401 ;  are  enacted.  That  purpose  is  to  sup- 
Sherwood  V.  Reade,  7  Hill,  431 ;  Striker  ply  the  government  with  a  revenue. 
V.  Kelly,  2  Denio,  328.  But  in  the  proceedings  to  obtain  this 

*  State  V.  Taylor,  35  N.  J.  L.  184,  it  is  also  intended  that  no  unnece^ - 
190.     The  language  of  a  distinguished    saiy  injury  shaU  be  inflicted  upcu 


STlilCT   CONSTKUCTION. 


461 


real  doubt,"  said  Mr.  Justice  Story,  "wliether  the  intention  of 
the  act  of  1841  was  to  levy  a  permanent  duty  on  indigo,  that 
doubt  will  absolve  the  importer  from  paying  the  duty."  * 

In  Gurr  v.  Scudds,^  Pollock,  C.  B.,  says:  "If  there  is  any 
doubt  as  to  the  meaning  of  the  stamp  act,  it  ought  to  be  con- 
strued in  favor  of  the  subject,  because  a  tax  cannot  be  imposed 
without  clear  and  express  words  for  that  purpose."  This  seems 
to  be  the  tenor  of  all  the  English  decisions,  that  every  charge 
on  the  subject  must  be  imposed  by  clear  and  unambiguous 
words.'    In  a  late  case  before  the  house  of  lords*  it  was  said : 


the  individual  taxed-  Wliile  this  is 
secondary  to  the  main  object  —  the 
impelling  occasion  of  the  law  —  it  is 
none  the  less  a  sacred  duty.  Care  is 
taken  in  constitutions  to  tosert  pro- 
visions to  secm-e  the  citizen  against 
injustice  in  taxation,  and  all  legisla- 
tive action  is  entitled  to  the  presmnp- 
tion  that  this  lias  been  intended.  We 
are  therefore  at  hberty  to.  suppose 
that  the  two  main  objects  had  in 
view  in  framing  the  provisions  of  any 
tax  law  were,  first,  the  providing  a 
pubhc  revenue,  and  second,  the  secur- 
ing of  individuals  against  extortion 
and  plunder  imder  the  cover  of  the 
proceedings  to  collect  the  revenues. 
The  provisions  for  these  purposes  are 
the  important  provisions  of  the  law. 
.  .  .  The  question  regarding  tlie 
revenue  laws  has  generally  been 
whether  or  not  they  shall  be  con- 
strued strictly.  The  general  rules  of 
interpretation  require  this  in  the  case 
of  statutes  which  may  divest  one  of 
his  freehold  by  proceedings  not  in  the 
ordinary  sense  judicial,  and  to  which 
he  is  only  an  enforced  partj'.  It  is 
thought  to  be  only  reasonable  to  in- 
tend that  the  legislature,  in  making 
provision  for  such  proceedings,  would 
take  unusual  care  to  make  use  of 
terms  wliich  would  plainly  express 
its  meaning,  in  order  that  ministerial 
officers  might  not  be  left  in  doubt  in 
the  exercise  of  luiusual  i)owei's,  and 


that  the  citizen  might  know  exactly 
what  were  his  duties  and  iiabUities. 
A  stiict  consti'uction  in  such  cases  is 
reasonable,  because  presumptively 
the  legislature  has  given  in  plain 
terms  all  the  power  it  has  intended 
should  be  exercised.  It  has  been 
very  generally  supposed  that  the  like 
strict  construction  was  reasonable  in 
the  case  of  tax  laws."  Cooley  on 
Taxation,  199,  200 ;  Dwarris  on  Stat- 
utes, 742,  749. 
1  United   States  v.  Wigglesworth, 

2  Stoiy,  a69,  374. 

2 11  Ex.  190,  192. 

3  Wroughton  v.  Turtle,  11  M.  &  W. 
561,  567 ;  WiUiams  v.  Sangar,  10  East, 
66,  69 ;  WaiTington  v.  Fm-bor,  8  id. 
242,  245 ;  Denn  v.  Diamond,  4  B.  &  C. 
243 ;  Doe  v.  Snaith,  8  Bing.  146,  152 ; 
Tomkins  v.  Ashby,  6  B.  &  C.  541,  543 ; 
Marquis  of  Chandos  v.  Commission- 
ers, 6  Ex.  464,  479 :  Oriental  Bank  v. 
Wright,  L.  R.  5  App.  Cas.  842 ;  Pryce 
V.  Monmoutlislui-e  Canal  &  Ry.  Co. 
L.  R.  4  App.  Cas.  197 ;  Reg.  v.  Barclay, 
L.  R,  8  Q.  B.  Div.  306 ;  Daines  v.  Heath, 

3  C.  B.  at  p.  941 ;  Goslmg  v.  Veley, 
12  Q.  B.  at  p.  407 ;  CasweU  v.  Cook, 

11  C.  B.  (N.  S.)  637 ;  Burder  v.  Veley, 

12  AcL  &  E.  at  p.  246 ;  Att'y-Gen.  v. 
Middleton,  3  H.  &  N.  at  p.  138 ;  Hes 
V.  West  Hum  Union,  L.  R.  8  Q.  B.  Div. 
09 ;  In  re  Micklethwait,  11  Ex.  452. 

•'Partington  v.  Att'y-GeiL  L.  R.  4 
il.  L.  Cas.  122. 


462  STRICT   CONSTKUCTION. 

"  The  principle  of  all  fiscal  legislation  is  this :  If  the  person- 
soujrht  to  be  taxed  comes  within  the  letter  of  the  law,  he  must 
be  taxed,  however  great  the  hardship  may  appear  to  the  judi- 
cial mind  to  be.  On  the  other  hand,  if  the  crown,  seeking  to 
recover  the  tax,  cannot  bring  the  subject  within  the  letter  of 
the  law,  the  subject  is  free,  however  apparently  within  the 
spirit  of  the  law  the  case  may  otherwise  appear  to  be.  In 
other  words,  if  there  is  admissible  in  any  statute  what  is  called 
an  equitable  construction,  certainly  such  a  construction  is  not 
admissible  in  a  taxing  statute,  where  you  can  simply  adhere 
to  the  words  of  the  statute." 

§  363.  The  American  cases  generally  announce  the  same  rule 
of  construction.  Duties,  says  Mr.  Justice  Nelson,  "  are  never 
imposed  upon  the  citizen  upon  vague  or  doubtful  interpreta- 
tions." *  Statutes  which  impose  restrictions  upon  trade  or  com- 
mon occupations,  or  which  levy  an  excise  or  tax  upon  them, 
must  be  strictly  construed.^  A  statute  conferring  authority 
to  impose  taxes  must  be  construed  strictly.''  A  tax  law  can- 
not be  extended  by  construction  to  things  not  named  or  de- 
scribed as  the  subjects  of  taxation.*  A  statute  required  taxes 
for  school  purposes  to  be  levied  on  all  the  ratable  estate  of 
persons  who  are  residents  of  the  district ;  it  authorized  an 
executor  to  put  the  property  of  the  estate  in  the  list  in  the 
name  of  the  estate.  It  was  held  that  the  ratable  estate  of  the 
deceased  pending  administration  might  be  assessed  in  the  dis- 
trict where  the  deceased  lived  and  died.  The  court  say :  "  The 
greatest  and  perhaps  the  only  objection  that  can  be  urged 
against  this  rule  is,  that  we  cannot  say  in  strictness  that  the 
deceased  or  his  estate  is  a  resident  of  the  district.  This  objec- 
tion assumes  that  the  statute  is  to  be  strictly  construed.  But 
we  do  not  think  that  the  doctrine  of  strict  construction  should 
apply  to  it.     Statutes  relating  to  taxes  are  not  penal  statutes, 

1  Powers  V.  Barney,  5  BlatcM.  202,  Carter,  2  Kan.  115 ;  Bensley  v.  Moun- 

203 ;  United  States  v.  Wiggleswortli,  tain  Lake  Water  Co.  13  CaL  306,  316. 

2  Story,  369,  373 ;    United  States  v.  2  SewaU  v.  Jones,  9  Pick.  412,  414. 

Watts,  1  Bond,  580,  583 ;  Vicksbvirg,  3  Moseley  v.  Tift,  4  Fla,  402 ;  WiU- 

etc.  R.  R.  Co.  V.  State,  62  Miss.  105 ;  ianis  v.  State,  6  Blackf.  36 :  Barnes  v. 

Mayor  v.  Hartridge,  8  Ga  23 ;  Crosby  Doe,  4  Ind.  132, 133 ;  Smith  r.  Watere^ 

V.   Brown,   60    Barb.   548;    Dean  v.  25  Ind.  397;  Fox's  Appeal,  112  Pa.  St. 

Charlton,  27  Wis.  522 ;  Shawnee  Co.  v.  337. 

4  Boyd  V.  Hood,  57  Pa,  St  98, 101. 


STRICT   CONSTRUCTION.  463 

nor  are  they  in.  derogation  of  natural  rights/' '  Tliat  case 
seems  to  have  been  properly  determined,  and  did  not  require 
a  denial  that  tax  laws  are  to  be  strictly  construed.  The  law 
expressly  allowed  the  listing  of  the  decedent  estate  in  tlie  name 
of  the  deceased  person's  estate,  and  therefore  the  levy  of  a  tax 
on  such  a  resident  as  such  an  "  intano-ible  bein"-"  could  be. 

o  o 

The  court  was  in  accord  with  the  general  current  of  authority 
in  concluding  that  in  construing  statutes  relating  to  taxes  they 
"  ought,  where  the  language  will  permit,  so  to  construe  thera 
as  to  give  effect  to  the  obvious  intention  and  meaning  of  the 
legislature,  rather  than  defeat  that  intention  by  too  strict  an 
adherence  to  the  letter."  ^  A  statute  to  rc-assess  a  void  tax 
will  be  construed  strictly.  Such  a  statute  is  in  derogation  of 
the  rights  of  the  citizen  who  may  be  affected  by  it ;  it  com})els 
him  to  bear  a  burden  which  he  would  not  have  to  bear  but  for 
it.  A  due  regard  for  individual  rights  and  the  plainest  prin- 
ciples of  justice  requires  that  taxing  statutes  shall  have  only 
the  effect  which  the  legislature  clearly  intended ;  in  construing 
them  aU  reasonable  doubts  as  to  such  intent  should  be  resolved 
in  favor  of  the  citizen.^  Every  statute  in  derogation  of  the 
rights  of  property  or  that  takes  away  the  estate  of  the  citizen 
ought  to  be  construed  strictly.  It  should  never  have  an  equi- 
table construction.*  Statutes  providing  for  redemption  of  lands 
sold  for  taxes  should  be  construed  liberally.^ 

§  364.  Exemption  from  taxation  or  other  general  bur- 
den.—  Kot  only  is  all  legislation  for  taxation,  but  also  for 
exemption  from  taxation,  or  any  other  common  burden  or 
liability,  to  be  strictly  construed.  The  principle  is  well  set- 
tled that  the  power  of  exemption,  as  well  as  the  power  of 
taxation,  is  an  essential  element  of  sovereignty,  and  can  only 
be  surrendered  or  diminished  in  plain  and  explicit  terms.* 

1  Cornwall,  Ex'r,  v.  Todd,  38  Conn.  Bloomington,  106  lU.  209 ;  S.  C.  5  Am. 
443.  &   Eng.    Corp.   Cas.   535;    Lima    v. 

2  See  3  Parsons  on  Cont  287.  Cemeteiy  Asso.  42  Ohio  St  128 ;  8.  C. 

3  Dean  v.  Charlton,  27  Wis.  522.  5  Am.  &  Eng.  Corp.  Cas.  547 ;  Mayor, 
*  Sharp  V.  Speir,  4  Hill,  76, 83 ;  Van-    etc.  v.  Centi-al  R  R  etc.  Co.  50  Ga- 

home's   Lessee  v    Don-ance,  2  DalL  620;  Gale  v.  Lam-ie,  5  B.  &  C.  156; 

304 ;  Sibley  v.  Smith,  2  Mich.  486,  490.  BufTalo  City  Cemetery  Co.  t.  Buflfalo, 

5  Alter  V.  Shepherd,  27  La.  Ann.  207.  46  N.  Y.  506 ;  SUite  v.  Bank  of  Smyrna, 

sProbasco  Co.  t.  Moundsville,   11  2  Iloust  99;  WilUs  v.  R  R   Co.   33 

W.    Va.    501 ;     McLean    County    v.  Barb.  398 ;   Orr  v.  Baker,  4  Ind.  86 ; 


4C, 


STKICT    CONSTEUCTION. 


Every  such  immunity  must  receive  a  strict  construction.  Leg- 
islation which  is  claimed  to  relieve  any  species  of  property 
from  its  due  proportion  of  the  general  burdens  of  government 
should  be  so  clear  that  there  can  be  neither  reasonable  doubt 
nor  controversy  about  its  terms.  The  language  must  be  such 
as  leaves  no  room  for  discussion.  Doubts  must  be  resolved 
against  the  exemption.^  If  a  statute  gives  authority  for  a 
special  purpose,  and  thereby  impliedly  remits  a  general  duty, 
this  implied  remission  cannot  be  prolonged  beyond  the  neces- 
sary requirements  of  the  purpose.^  A  statute  exempting  a 
railroad  company  from  liability  for  accidents  to  passengers 
riding  on  the  platform  of  cars/  limiting  individual  Hability  of 
partners  in  limited  partnerships,*  and  according  to  some  cases, 
and  probably  contrary  to  the  weight  of  authority,  laws  ex- 
empting certain  property  of  debtors  fi'om  execution,'  laws 
providing  for  stay  of  proceedings  in  favor  of  persons  enlisted 
in  the  army,''  are  construed  strictly.  So  are  provisions  relat- 
ing to  disabilities,  saving  rights  of  action,  and  extending  the 
time  for  their  assertion ;  ^  and  provisions   exonerating  ship- 


St  Louis,  etc.  Ry.  Co.  v.  Beriy,  41 
Ark.  509 ;  Rue  v.  Alter,  5  Denio,  119 ; 
Railway  Co.  v.  Lof tin,  98  U.  S.  559 ; 
Cinciimati  College  v.  State,  19  Ohio, 
110 ;  State  v.  IMills,  34  N.  J.  L.  177 ; 
Gordon's  Ex'r  v.  Mayor,  etc.  5  GUI, 
231 ;  Weston  v.  Supervisors,  44  Wis. 
242 ;  State  v.  McFetridge,  64  id.  130. 
Exemption  from  taxation  does  not 
include  exemption  from  local  assess- 
ments. 5  Am.  &  Eng.  Corp.  Cas.  552, 
note.  '•  An  exception  as  to  the  exemp- 
tion is  made  in  favor  of  sales  for  non- 
payment of  taxes  or  assessments,  and 
for  a  debt  or  hability  incurred  for  the 
purchase  or  improvement  of  the 
premises,  thus,  according  to  a  familiar 
rule  of  construction,  excludmg,  by 
necessary  unphcation,  any  other  ex- 
emption ;  and  the  language  expressly 
excludes  every  other  kno\vn  mode  of 
incumbering  and  conveying  the  prop- 
erty." Eldridge  v.  Pierce,  90  111.  474. 
Statutes  exempting  railroad  property 
from  taxation  are  to  be  hberaUy  con- 


strued if  a  hcense  fee  or  other  equiva- 
lent is  paid  in  heu  of  taxes  levied  in 
the  usual  way.  IMilwaukee,  etc.  R'y 
Co.  V.  MHwaukee,  34  Wis.  271. 

1  BaHey  v.  Magwu-e,  22  Wall  226 ; 
Vicksburg,  etc.  Ry.  Co.  v.  Dennis,  116 
U.  S.  665 ;  Yazoo  R.  R.  Co.  v.  Thomas, 
132  id.  174.  See  Gray  v.  La  Fayette 
Co.  65  Wis.  567. 

2  WiUiams  v.  Tripp,  11  R.  L  447. 
3WiUis  V.  Raih-oad  Co.  32  Barb. 

398. 

1  Andrews  v.  Schott,  10  Pa.  St  47 ; 
Vandike  v.  Rosskam,  67  id.  380; 
Maloney  v.  Bruce,  94  id.  249;  Eliot 
V.  Himrod,  108  id.  500. 

5  Re  Lammer,  7  Biss.  269 ;  Rue  v. 
Alter,  5  Denio,  119 ;  post,  §  422.  See 
Carpenter  v.  Herrington,  25  Wend. 
370;  Kinard  v.  Moore,  3  Strob. 
193. 

^Breitenbach  v.  Bush,  44  Pa  St 
313. 

'  Carlisle  v.  Stitler,  1  Pen.  &  W.  6 ; 
Thomijson  v.  Smith,  7  Serg.  &  R,  209 ; 


STlilCT   CONSTKUCTION.  405 

owners  for  damages  caused  their  ships  through  the  faults  of 
pilots  whom  they  are  compelled  to  employ.' 

§365.  Acts  delegating  the  power  of  taxation. —  Acts  of 
this  class  are  construed  with  great  strictness.  Two  concur- 
ring principles  leading  to  strict  construction  apply.  Such  acts 
affect  arbitrarily  private  property,  and  are  grants  of  power. 
^'  The  power  to  lay  taxes,"  says  the  supreme  court  of  Ohio,  "  is 
one  of  the  highest  attributes  of  sovereignty.  It  involves  the 
right  to  take  the  private  property  of  the  citizen  without  his 
consent  and  without  other  consideration  than  the  promotion 
of  the  public  good.  Such  interference  with  the  natural  right 
of  acquisition  and  enjoyment  guarantied  by  the  constitution 
can  only  be  justified  when  public  necessity  clearly  demands  it. 
Being  a  sovereign  power,  it  can  only  be  exercised  by  the  gen- 
eral assembly  when  delegated  by  the  people  in  the  funda- 
mental law;  much  less  can  it  be  exercised  by  a  municipal 
corporation  without  a  further  unequivocal  delegation  by  the 
legislative  body."  -  The  power  can  be  delegated  by  the  legis- 
lature,* but  only  in  plain  and  unambiguous  words.*  Statutes 
for  that  purpose  will  be  construed  strictly,  and  they  must  be 
closely  pursued ;  a  departure  in  any  material  part  will  be  fatal.^ 

Rankin  v.  Tenbrook,  6  Watts,  388;  Cal  255;  Holland  v.  Mayor,  etc.  11 

Marple  v.  lilyers,  13  Pa.  St  122 ;  Rider  Md.   186 ;    Clai-k  t.  Washington,  12 

V.  Maul,  46  id.  376.  Wheat.  40 ;  Fowle  v.  Alexandria,  3 

1  The  Protector,  1  W.  Rob.  45 ;  The  Pet  398 ;  Reed  v.  Toledo,  18  Ohio,  161 ; 

Diana,  4  Moore,  P.  C.  11 ;  The  lona,  Jonas  v.  Cincinnati,  id.  318 ;  Mays  v. 

L.  R.  1  P.  C.  426.  Cincinnati,  1  Ohio  St  268 ;  Xichol  v. 

-  Mays  V.  Cmcinnati,  1  Ohio  St  269,  Nashville,  9  Humpli,  252 ;  Kniper  v. 

273 ;  Bennett  v.  Birmingham,  31  Pa,  LouisviUe,   7  Bush,  599 ;   Broadway 

St  15 ;  Wisconsin  Telephone  Co.  v.  Bap.  Church  v.  McAtee,  8  Bush,  508 ; 

Oshkosh,  62  Wis.  32.  Clark,  Dodge  &  Co.  v.  Davenport,  14 

3  St.  Louis  V.  Lauglilin,  49  Mo.  559 ;  Iowa,  494 ;  United  States  v.  Mayor, 

Davis  V.  Gaines,  48  Ark.  370 ;  Will-  etc.   2  Am.   L.  Reg.  (N.  S.)  394  and 

iamson  v.  New  Jersey,  130  U.  S.  189.  note ;  St  Charles  v.  Nolle.  51  Mo.  122, 

■*  St  Louis  V.  Laughhn,  49  Mo.  559 ;  124 ;  Bennett  v.  Birmingham,  31  Pa. 

Douglass  V.  Mayor,  etc   18  CaL  643 ;  St  15 ;  Henry  v.  Chester,  15  Vt.  460 : 

Harding  v.  Bader,  75  Mich.  316 ;  Mat-  Rex  v.  Liverpool,  4  Biu-r.  2244 ;  Ryer- 

ter  of  2d  Ave.  M.  K  Chm-ch,  66  N.  Y.  son  v.  Laketon.  52  Midi.  509 ;  Folk- 

395.  erts  v.  Power,  42  ^Micli.  283 ;  Hough- 

5  Judge  of  Campbell  County  Court  ton  Coimty  v.  Auditor-Gen.  41  Mich. 

V.    Taylor,   8    Bush,   206 ;    Sharp  v.  28 ;  Cniger  v.  Dougherty,   43  N.  Y. 

Johnson,  4  HUl,  92 ;  Lake  v.  Williams-  107. 121 ;  Sharp  v.  Speir,  4  Hill.  76, 83 ; 

bm-gh,  4  Denio,  520 ;  Hewes  v.  Reis,  40  Bcaty  v.  Kuowler,  4  Pet  152. 
80 


466  STRICT   CONSTRUCTION. 

Any  doubt  or  ambiguity  arising  out  of  the  terms  used  by  the 
legislature  must  be  resolved  in  favor  of  the  public.^  Accord- 
ingly it  is  held  that  under  authority  to  levj^  a  tax  and  to  sell 
property  for  non-payment  land  cannot  be  sold  for  a  delinquent 
assessment.^  A  power  to  tax  or  entirely  suppress  all  petty 
groceries  will  not  authorize  a  grant  of  licenses  for  retailing.* 
A  power  to  tax  for  repaving  streets  will  not  include  an  original 
paving.*  A  charter  power  to  a  municipal  corporation  to  tax 
hacks,  drays,  etc.,  within  the  city  does  not  authorize  a  tax  on 
outside  residents  engaged  m  hauling  into  and  out  of  the  city, 
and  even  an  express  grant  of  such  power  to  tax  would  be  void 
as  an  unconstitutional  taking  of  private  property  for  pubhc 
use.'  Authority  to  tax  "  auctioneers,  grocers,  merchants,  re- 
tailers, hotels,  .  .  .  hackney  carriages,  omnibuses,  carts, 
drays  and  other  vehicles,  and  all  other  business,  trades,  avoca- 
tions or  professions  whatever,"  held  not  to  include  attorneys  at 
law.^  Where  a  special  tax  is  authorized  for  a  specified  purpose, 
and  the  law  is  silent  as  to  cost  of  collection,  nothing  can  be  added 
for  compensation  of  the  collector.''  It  is  not  in  the  power  of 
the  common  council  of  a  city,  by  ordinance,  to  include  persons 
as  hucksters  who  do  not  fall  within  the  ordinary  meaning  of 
that  term ;  nor  can  the  power  of  taxation  upon  employments, 
when  not  conferred  by  the  charter,  be  resorted  to  as  a  means 
of  preventing  huckstering.^  Where  the  taxing  power  was  au- 
thorized to  be  exercised  after  a  majority  of  the  legal  voters  of 
a  county  named  had  voted  in  favor  of  a  specified  proposition, 
it  was  held  that  this  was  a  condition  precedent,  and  that  it 
was  not  fulfilled  by  a  submission  to  the  voters  of  such  county 
excepting  those  in  a  city  therein.^ 

§  366.  Statutes  against  commou  right. —  Statutes  against 
common  right  are  those  which  operate  exceptionally  to  the 

1  Id ;  Mmtiu-n  v.  Larue,  23  How.  As  to  application  of  the  doctrine 
435.  of    ejusdem    generis,    see    Littlefield 

2  Sharp  V.  Speir,  4  Hill,  76 ;  City  of  v.  Winslow,  19  Me.  394 ;  Foster  v. 
Fau-tield  v.  RatcUff,  20  Iowa,  396.  Blount,  18  Ala.  689 ;  Gruniley  v.  Webb, 

3  Leonard  v.  Canton,  35  Miss.  189.        44  Mo.  458 ;  Sedgw.  423 ;  ante,  §  268. 
^  Holland  v.  Mayor,  etc.  11  Md.  186.    See  State  v.  Robinson,  42  Minn.  107. 

5  St.  Charles  v.  Nolle,  51  Mo.  122,  '  Jonas  v.  Cincinnati,  18  Ohio,  318. 
124 ;  Bennett  v.  Birmingham,  31  Pa.  8  Mays  v.  Cincinnati,  1  Ohio  St.  268. 
St  15.  9  Judge  of  Campbell  County  Court 

6  St  Louis  V.  Laughlin,  49  Mo.  559 ;  v.  Taylor,  8  Bush,  206. 
Trustees,  etc.  v.  Osborne,  9  Ind.  458. 


STRICT   CONSTRUCTION,  467 

prejudice  of  particular  persons;  not  laws  of  general  applica- 
tion which  happen  to  harshly  affect  a  few  individuals  on  ac- 
count of  their  exceptional  condition,  but  laws  which  do  not 
have  such  an  application;  those  which  operate,  when  they 
apply  at  all,  to  a  few,  while  the  rest  of  the  community  are  ex- 
empt. Such  statutes  are  construed  strictly.^  Of  this  nature 
is  a  statute  obliging  an  attorney,  on  request  or  nomination  of 
a  court,  to  take  charge  of  a  lawsuit  gratuitously.-  The  act 
incorporating  the  Cajiiga  Bridge  Company  contained  a  pro- 
vision that  it  should  not  be  lawful  for  any  person  or  persons 
to  erect  any  bridge  or  establish  any  ferry  within  three  miles  of 
the  company's  bridge,  nor  be  lawful  for  any  person  to  cross 
the  lake  except  in  his  own  boat  within  that  distance  without 
paying  toll  to  the  company.  The  provision  was  construed 
strictly  and  held  not  to  apply  to  a  person  who  crossed  the 
lake  within  that  distance  on  the  ice.'  The  court  say  statutes 
cannot  take  away  a  common*  right  unless  the  intention  is 
manifest ;  and,  when  not  remedial,  are  not  to  be  extended  even 
by  equitable  principles.*  Towns  being  under  no  obligation, 
except  that  created  by  law,  to  support  paupers,  a  case  must  be 
brought  strictly  witJhin  the  provisions  of  the  law  before  the 
duty  arises ;  and  an  approximation,  however  near,  will  not  be 
sufficient.^  Questions  of  legal  settlement  depend,  therefore, 
upon  a  strict  and  precise  apphcation  of  positive  law.^  Where 
the  settlement  depended  by  the  language  of  the  statute  on  hav- 
ing an  estate  the  principal  of  which  shall  be  set  at  601.  or  the 
income  at  31.,  in  the  valuation  of  estates  by  assessors,  and  be  as- 
sessed for  the  same  for  the  space  of  five  years  successively  in 
the  town  where  a  person  dwelt,  it  was  not  enough  that  he  had 
an  estate  of  that  value  not  assessed  at  all.'^  The  right  to  im- 
press property  to  be  used  for  the  taking  care  of  persons  in- 
fected with  sickness  dangerous  to  public  health  can  only  be 
exercised  when  expressly  granted.^ 

1  Flint    River    Steamboat    Co.    v.        *  Coolidge  v.  Williams,  4  Mass.  140 ; 
Foster,  5  Ga.  194 ;  Mayor,  etc.  v.  Hart-    Melody  v.  Reab,  id.  473. 

ridge,  8  id.  23 ;  Young  v.  McKenzie,  3        8  Danvers  v.  Boston,  10  Pick.  513. 
id.  40 ;  Marsh  v.  Nelson,  101  Pa,  St        ^I±;  BiUerica  v.    Chelmsford,   10 

51 ;  Rothgerber  v.  Dupuy,  64  EL  453 ;  Mass.  394. 
Walker  v.  Chicago.  56  id.  277.  '  Monson  v.  Chester,  22  Pick.  385. 

2  Webb  V.  Baird,  6  Ind.  13.  ■*  Puikham  v.  Dorothy,  55  Me  135 ; 
» Sprague  v.  Budsall,  2  Cow.  419.  Mitchell  v.  Rockland,  45  id.  496. 


468  STEICT   COJS^STEUCTION. 

§  367.  Statutes  are  not  unfrequently  enacted  for  police  pur- 
poses which  by  their  terms  must  operate  to  the  special  preju- 
dice of  persons  in  particular  situations,  for  the  common  good. 
In  a  certain  sense  these  are  statutes  against  common  right ; 
and  though  the  power  to  pass  them  is  unquestionable,  they 
should  only  operate  within  their  strict  letter,  interpreted  ac- 
cording to  their  plain  intent.  For  the  protection  of  a  harbor  the 
legislature  may  forbid  the  removal  of  stones,  gravel  or  sand 
from  the  beach  by  the  owuer.^  Restrictions  on  the  building  or 
repairing  of  wood  structures  in  the  populous  part  of  a  city,  com- 
monly designated  as  fire  hmits,  are  invasions  of  private  right, 
and  to  be  strictly  confined  to  their  literal  import.^  Laws  in  re- 
straint of  trade,  or  the  alienation  of  property,^  or  those  which 
abridge  the  privilege  or  right  of  giving  evidence,*  will  be  con- 
strued strictly.  So  of  a  statute  requiring  of  suitors  a  test  oath.* 
An  act  placing  Indians  under  certain  disabilities  in  respect  to 
seUing  or  devising  their  land  was  held  not  to  be  strictly  con- 
strued, especially  if,  by  such  construction,  the  object  of  the  leg- 
islature would  be  defeated ;  protective  and  remedial  statutes 
imposing  disabilities  upon  persons  for  their  benefit  ought  to  re- 
ceive a  liberal  construction.** 

§  368.  Statutes  of  limitation. —  Statutes  limiting  the  right 
to  bring  actions  to  particular  periods  are  restrictive  and  wiU 
not  be  extended  to  any  other  than  the  cases  expressly  pro- 
vided for ; "  and  the  exceptions  are  allowed  a  liberal  effect,^ 
thouo-h  not  so  liberal  as  to  embrace  cases  within  the  reason 
when  not  within  the  letter  of  them.^  The  exception  of  actions 
which  concern  the  trade  of  merchandise  between  merchants 
is  confined  to  actions  on  open  and  current  accounts ;  it  does 

1  Commonwealth  v.  Tewksbury,  11  ^  Harrison  v.  Leach,  4  W.  Va.  383. 
Met  55.  ^  Doe  v.  Avaline,  8  Ind.  6,  and  note. 

2  Stewart    v.    Commonwealth,    10  See  Smith  v.  Spooner,  supra. 
Watts,  307 ;   Brady  v.  Northwestern  ^  Bedell  v.  Janney,  9  IlL  193 ;  Dela- 
Ins.  Co.  11  ]\Iich.  425,  451 ;  Booth  v.  ware,  etc.  R  R.  Co.  v.  Burson,  61  Pa, 
State,  4  Conn.  65 ;  Tuttle  v.  State,  id.  St  369 ;  Pearl  v.  Conley,  7  Sm.  &  M. 
68.  358 ;  Wood  on  St  Lim.  §  4. 

5  Richards    v.    Emswiler,    14    La.  sRoddam  v.  Morley,  1  De  G.   «& 

Ann.   658 ;  Sewall  v.  Jones,  9  Pick.  J.  1. 

412 ;  Gimter  v.  Leckey,  30  Ala,  591.  9  Sacia  v.   De  Graaf,   1   Cow.  3"")6. 

*  Smith  V.   Spooner,  3  Pick.   229 ;  See  post,  g§  424,  425. 
Pelham  v.  Messenger,  16  La.  Ann.  99. 


STRICT   CONSTRUCTION.  4G9 

not  extend  to  accounts  stated.  It  must  be  a  direct  concern  of 
trade ;  liquidated  demands,  or  bills  and  notes,  which  are  only- 
traced  to  the  trade  of  merchandise  are  too  remote  to  come 
within  this  description. •  When  the  statute  contains  no  excep- 
tion, as  a  general  rule,  the  courts  will  not  make  any.'' 

There  has  been  held  to  be  an  implied  suspension  of  such 
statutes  durino:  the  late  civil  war  as  to  citizens  of  different  states 
between  which  intercourse  was  interru])ted,  on  the  ground  of 
paramount  necessity,  and  limited  by  such  necessity.'  Being 
statutes  of  repose,  they  are  not  regarded  in  modern  times  with 
disfavor ;  and  are  therefore  not  to  be  defeated  by  undue  strict- 
ness of  construction.*  Heath,  J.,  said  these  statutes  ought  to 
receive  a  strict  construction.*  But  this  has  not  been  the  uniform 
expression  of  English  judges.  Dallas,  C.  J.,  said :  "  I  cannot 
agree  in  the  position  that  statutes  of  this  description  ought  to 
receive  a  strict  construction ;  on  the  contrary,  I  think  they 
ought  to  receive  a  beneficial  construction  with  a  view  to  the  mis- 
chief intended  to  be  remedied."  ^  Like  views  have  been  ex- 
pressed in  this  country.  "  The  statute  of  limitations  is  entitled 
to  the  same  res])ect  with  other  statutes  and  ouglit  not  to  be  ex- 
plained away."  '^  Such  statittes  were  not  enacted  to  protect  per- 
sons from  claims  "fictitious  in  their  origin,  but  from  ancient 
claims,  whether  well  or  ill  founded,  which  may  have  been  dis- 
charged, but  the  evidence  of  discharge  may  be  lost.*  Story,  J., 
in  Bell  v.  Morrison,"  said:  "  It  is  a  wise  and  beneficial  law,  not 
designed  merely  to  raise  a  presumption  of  payment  of  a  just 
debt  from  lapse  of  time,  but  to  afford  security  against  stale 
demands  after  the  true  state  of  the  transaction  may  have  been 

1  Rainchander     v.     Hammond,    2  Charter  Oak   Ins.   Co.   64  Mo.   330 ; 

John.  200.  Stiles  v.  Easley,  51  111.  275 ;  Mixer  v. 

-  Kilpatrick  v.  Byi-ne,  25  Miss.  571 ;  Sibley,  53  id.  61 ;  Coleman  v.  Holmes, 

Semmes    v.    Hartford    Ins.    Co.    13  44  Ala.  124. 

WaU.  158;  Warfield  v.  Fox.  53  Pa.  *Toll  v.  Wright,  37  Mich.  93;  Pal- 

St.  382 ;  The  Sam  Slick,  2  CurtLs.  C.  mer  v.  Palmer,  36  id  487. 

C.  480 ;  Wells  v.  Child.  12  Allen,  333 ;  5  Roe  v.  Ferrars,  2  B.  &.  P.  at  p.  547. 

Dozier  V.  EULs,  28  Miss.  730 :  Favorite  «Tol9on  t.  Kaye,  3  Brod.  &  B.  at 

V.  Booher,  i7   Ohio  St.  548;  Pry  or  v.  p.  222. 

Rybiu-n,    16    Ark.    671;     Howell    v.  "  Clementson  r.  Williams,  8  Cranch, 

Hah-,   15  Ala.    194;  Baines  v.  Will-  72. 

lams,  3  Ired.  L.  481.  -<  Id. 

3  Levy  V.  Stewart.    11   AVall.   244;  » 1  Pet.  351. 
Ross  V.  Jones,  22  Wall.  576  ;  Smith  v. 


470  STRICT    CONSTKUCTION. 

forgotten,  or  be  incapable  of  explanation  by  reason  of  the 
death  or  removal  of  witnesses.  It  has  a  manifest  tendency  to 
produce  speedy  settlements  of  accounts  and  to  suppress  those 
prejudices  which  may  rise  up  at  a  distance  of  time  and  baffle 
every  honest  effort  to  counteract  or  overcome  them,"  ^  Such 
statutes  rest  upon  sound  policy  and  tend  to  the  peace  and  wel- 
fare of  s.ociety.  The  courts  do  not  now,  unless  compelled  by  the 
force  of  former  decisions,  give  a  strained  construction  to  evade 
their  effect.^  This  class  of  statutes  has  a  harsh  effect  on  the 
creditor,  which  consideration  leads  to  a  strict  construction; 
and  a  debtor  who  takes  advantage  of  long  forbearance  to  be 
utterly  discharged  on  his  own  account  has  little  right  to  favor ; 
but  all  persons  are  not  provident  enough  to  have  indestructible 
evidence  of  all  theu'  transactions,  and  it  is  for  the  general  good 
that  a  period  be  fixed  after  which  there  is  an  arbitrary  exemp- 
tion from  liability.  In  this  sense  these  statutes  are  remedial, 
to  afford  protection  against  stale  claims,  after  a  period  suffi- 
cient to  the  diligent,  and  when  in  the  majority  of  instances  a 
defending  party  would  be  placed  at  a  disadvantage  by  reason 
of  the  delay. 

§  369.  Limitations  as  to  new  trials  and  appeals. —  Provis- 
ions which  limit  in  point  of  time  the  right  to  move  for  a  new 
trial,  or  to  take  an  appeal,  are  construed  with  strictness  in 
favor  of  the  party  desiring  a  review,  when  the  time  is  to  be 
computed  from  notice  of  the  judgment  to  be  given  by  the  op- 
posite party.  The  right  of  appeal  is  general  and  positive,  and 
as  statutes  of  limitation  are  in  restraint  of  that  right  they 
are,  as  already  said,  to  be  construed  strictly.^  Although  it  be 
admitted  that  notice  means  knowledge,  it  by  no  means  follows 
that  knowledge  or  information  of  any  kind  will  suffice  —  notice 
to  limit  the  right  in  question  must  be  given.  This  implies  a 
positive  act  of  the  party  in  whose  favor  the  judgment  has  been 
rendered.  "  It  is  highly  proper,"  says  Savage,  C.  J.,  "  that 
such  should  be  the  practice.  Notice  in  such  a  case  ought  not 
to  depend  upon  casual  information  or  an  advertisement  in  the 
newspapers.  Such  notice  certainly  cannot  be  considered  no- 
tice given  by  one  party  to  the  other.     It  is  clear  to  my  mind 

1  See  WiUison  v.  Watkins,  3  Pet.  ^  McChmy  v.  Silliman,  3  Pet  270 ; 
43,  54.  United  States  v.  WUder,  13  Wall  254. 

3  Pease  v.  Howard,  14  Jolin.  479. 


STRICT   CONSTRUCTION.  471 

that  the  legislature  intended  a  regular,  formal,  written  notice."  ' 
AV^liere  an  appeal  was  required  to  be  taken  within  "thirty 
days  after  written  notice  of  the  judgment  or  order  shall  have 
been  given  to  the  party  appealing,"  it  was  held  that  unless, 
after  the  judgment  or  order  and  its  entry,  the  part}'  has  some 
written  notification  thereof  by  the  act  of  the  prevailing  party 
or  his  attorney,  the  time  to  appeal  continues  without  limita- 
tion. The  party  may  acquire  a  knowledge  of  the  order,  he 
may  examine  it  on  the  files  of  the  court  or  on  its  records,  or 
procure  a  copy  of  it  from  the  clerk ;  but  as  a  limitation  of  the 
time  to  appeal,  knowledge  so  acquired  will  be  wiiolly  inopera- 
tive.- Such  a  notice  must  be  given,  though  the  order  or  judg- 
ment appealed  from  was  entered  by  the  appellant  himself ;  ^ 
or  though  he  was  in  court  and  heard  the  judgment  pronounced 
and  even  asked  for  a  stay  of  proceedings.*  Service  of  a  report 
containing  a  recital  of  the  judgment  or  order  will  not  be  suffi- 
cient.^ 

§  370.  Statutes  iuterferiug  with  legitimate  industries, 
etc. —  All  statutes  for  interference  with  legitimate  industries 
or  the  ordinary  uses  of  property,  or  for  its  removal  or  destruc- 
tion for  being  a  nuisance  or  contributory  to  public  evil,  are 
treated  with  a  conservative  regard  for  the  liberty  of  the  citi- 
zen in  his  laudable  business,  and  in  the  innocent  enjoyment  of 
his  possessions,  and  generally  the  rights  of  property.  Such 
interferences  are  cautiously  justified  on  principles  of  the  com- 
mon law,  and  only  in  cases  of  imperative  necessity,''  or  under 
valid  statutes  plainly  expressing  the  intent.' 

1  Jenkins  V.  Wild,  14  Wend.  539,  545.  Gray,   359;     Austin    v.    MuiTay,   16 

2  Fry  V.  Bennett,  16  How.  Pr.  402 :  Pick.  121 ;  Welch  v.  Stowell,  2  Doug. 
Valton  V.  National  Loan,  etc.  Co.  19  (]Mich.)  332 ;  AValker  v.  Board  of 
id.  515.  Public  Works.  16  Ohio.  540 ;  Wyne- 

3  Rankin  v.  Pme,  4  Abb.  Pr.  309.  hamer  v.   People,  13  N.  Y.  378-.  Port 
4Biagi  V.  Howes,  66  Cal.  469.  Wardens  of  N.  Y.  v.  Cartwright  4 

5  Matter  of  N.  Y.  Cent.  etc.  R.  R.  Sandf .  236 ;  Stevens  v.  State,  2  Ark. 
Co.  60  N.  Y.  112.  291 ;  Thorpe  v.  R  &  B.  R  R  Co.  27 

6  Mayor,  etc.  of  New  York  v.  Lord,  Vt.  140 ;  Miller  v.  Craig,  11  N.  J.  Eq. 
18  Wend.  128;  Respublica  v.  Spar-  175;  Baitemeyer  v.  Iowa,  18  WalL 
hawk,  1  Dall.  357 ;  Russell  v.  Mayor,  129.  137 :  3Iugier  v.  Kansas,  123  U.  S. 
etc.  2  Denio,  461,  474.  623,  661 :   AVatertowu  v.   Mayo,  109 

'  Re  Jacobs,  98  N.  Y.  98 ;  People  T.  Mass.  315,  319:  Slaughter  House 
Marx,  99  id.  377 ;  Munn  v.  Illinois,  94  Cases,  16  Wall.  36 ;  St;\te  v. Gihuan. 33 
U.  S.  113;  Brigham  v.  Edmunds,  7    W.  Val46;  41  Alb.  L.  J.  24;  Hughes 


472  STKICT    CONSTKUCTIOX. 

§  371.  Statutes  creating  liability. —  If  a  statute  creates  a 
liability  where  otherwise  none  would  exist,  or  increases  a  com- 
mon-law liability,  it  will  be  strictly  const rued.^  A  statute^ 
even  when  it  is  remedial,  must  be  followed  Avith  strictness, 
where  it  gives  a  remedy  against  a  party  who  would  not  other- 
wise be  liable.-  The  courts  will  not  extend  or  enlarge  the 
liability  by  construction ;  they  will  not  go  beyond  the  clearly 
expressed  provisions  of  the  act.^  Statutes  which  create  a  Ua- 
bility  in  favor  of  "  the  widow  and  next  of  kin  "  of  a  person 
whose  death  has  been  caused  by  negligence  are  of  this  class. 
Actions  founded  on  those  statutes  must  strictly  conform  to 
them.^  Such  an  action  cannot  be  given  by  implication.'^  The 
relief  or  remedy  provided  is  not  extended  to  any  other  per- 
sons than  those  mentioned  in  the  statute.^  AYhen  given  to  a^ 
'*  child,"  an  illegitimate  has  been  held  in  England  not  within 
the  statute,  though  the  case  was  for  negligently  causing  the 
mother's  death ; '  but  it  has  been  held  otherwise  in  this  coun- 
try.®  These  statutes  are  confined  to  pecuniary  damages,  though 
it  has  been  said  that  the  word  "  damages  "  is  not  taken  in  a 
very  strict  sense.'     Every  element  is  excluded  which  is  not  in- 

V.  Chester,  etc.  Ry.  Co.  8  Jur.  (N.  S.)  5  Barrett  v.  Dolan,  130  Mass.  366 ; 

221;  S.  C.  3  De  Gex,  F.  &    J.  352;  S.  C.  39  Am.  Rep.  456. 

Mayor,  etc.  v.  Davis,  6  W.  &  S.  269 ;  ^  Green  v.  Hvidson  R.  R.  R.  Co.  32 

Commonwealthv.  Sylvester,  13  Allen,  Barb.  25;   Warren  v.  Englehart,  13 

247 ;  Shiel  v.  Mayor,  etc.  6  H.  &  N.  Neb.  283 ;  Dickins  v.  N.  Y.  Cent  R. 

796 ;  Wiener  v.  Davis,  18  Pa.  St.  331 ;  R.  Co.  23  N.  Y.  159 ;   Woodward  v. 

McGlade's  Appeal,   99  Pa.   St.   338;  R'y  Co.  23  Wis.  400.    See  Houston, 

Cooley's  Const.  Liui.  eh.  XVI.  etc.  R'y  Co.  v.  Bradley,  45  Tex.  171. 

1  Colin  V.  Neeves,  40  Wis.  393 ;  "  Dickinson  v.  Northeastern  R'y  Co. 
Steamboat  Ohio  v.  Stimt,  10  Oliio  St.  2  H.  &  C.  735 ;  Blake  v.  Midland  R'y 
582 ;  Moyer  v.  Penn.  Slate  Co.  71  Pa.  Co.  10  L.  &  Eq.  437 ;  Gibson  v.  Mid- 
St.  293 ;  Lane's  Appeal,  105  id.  49 ;  land  R'y  Co.  15  Am.  &  Eng.  R.  R 
O'Reniy  V.  Bard,  id.  569;  HoUister  Cas.  507;  2  Out.  658.  See  Gardner 
v.  HollLster  Bank,  2  Key es,  245;  Mat-  v.  Heyer,  2  Paige,  11. 

ter  of  HolUster  Bank,  27  N.  Y.  383.  «  Muhl's  Adm'r  v.  Midi.  Southern 

2  Chicago,  etc.  R.  R.  Co.  v.  Sturgis,    R.  R.  Co.  10  Ohio  St.  272. 

44  Midi.   538 ;    Steamboat   Ohio    v.        » Tilley  v.  Hudson  R.  R.  R.  Co.  24 

Stunt.  10  Ohio  St.  582.  N.  Y.  474 ;  Penn.  R.  R.  Co.  v.  KeUer, 

3  Detroit  v.  Putnam,  45  Mich.  263 ;  67  Pa.  St.  300 :  Union  Pac.  R.  R.  Co. 
Detroit  v.  Chaffee,  70  id.  80.  v.  Dundeu,  31  Am.  &  Eng.  R.  R.  Cas. 

i  Telfer  v.  Northern  R.  R.  Co.  30  N.  88 ;  S.  C.  37  Kan.  1 ;  Carroll  v.  Mo. 

J.  L.  188,  209 ;    Hayes  v.  Phdan,  4  Pac.  R.  R  Co.  26  Am.  &  Eng.  R  R. 

Hun,  733;  Galveston,  etc.  R  R  Co.  v.  Cas.  268;  S.  C.  88  Mo.  239 ;  St.  Law- 

Le  Gierse,  51  Tex.  189.  rence,  etc.  R  R.  Co.  v.  Lett,  26  Am.  & 


STRICT   CONSTKUCTION.  47.-J 

eluded  in  the  meaning  expressed  I  y  "  pecuniary  damages."  ' 
The  South  Carolina  statute  does  not  contain  the  restrictive 
word  "  pecuniary  "  to  limit  damages  in  such  cases,  and  gives 
a  broadur  scope  of  recovery.-  Though  the  action  is  given  for 
the  benefit  of  the  widow  and  next  of  kin,  the  statute  is  not 
construed  so  strictly  as  to  be  limited  to  cases  where  there  are 
both  widow  and  next  of  kin.^  Xor  are  the  next  of  kin  required 
to  be  so  nearly  related  as  to  create  any  duty  of  sustenance, 
support  or  education.''  Statutes  allowing  costs,  it  was  ruled 
at  an  early  day,  should  be  taken  strictly,  as  being  a  kind  of 
penalty.'*  This  reason  is  not  strictly  correct.  Costs  are  com- 
pensatory to  the  prevailing  party ;  they  are  allowed  him  to 
make  his  remedy  more  adequate.  The  liability  to  pay  them  is 
created  by  statute,  because  the  party  so  made  liable  has  fur- 
nished the  occasion  for  incurring  these  costs.  The  obligation 
extends  no  further  than  it  is  plainly  declared  by  the  author- 
ity which  creates  it.  The  cases  are  numerous,  but  they  con- 
tain very  little  discussion  as  to  the  rule  of  construction.  The 
allowance  of  costs  turns  on  the  interpretation-  of  the  terms  of 
the  statutes  and  the  intention  deduced  therefrom, —  they  are 
strictly  construed ;  and  neither  costs  nor  salaries  can  be  given 

Eng.  R.  R.  Cas.  454 ;  Telfer  v.  Northern  24  Md.  271 ;  Baltimore,  etc.  R  R  Co. 

R  R  Co.  30  N.  J.  L.  188 ;  Little  Rock,  v.  Trainor,  33  id.  542 ;  Jolmson  v.  Chi- 

etc.  R.  R.  Co.  V.  Barker,  39  Ark.  491.  cago,  etc.  R  R.  Co.  G4  Wis.  425 ;  S.  C. 

1  Id. ;  Searles  v.  Kauawha,  etc.  R  R.  25  Am.  &  Eug.  R.  R.  Cas.  338. 

Co.  37  Am.  &  Eng.  R  R  Cas.  179;  ^Petrie  v.  Columbia,  etc.  R  Co.  35 

S.  C.  33  W.  Va.  370 ;  Cleveland,  etc.  Am.  &  Eng.  R.  R  Cas.  430 ;   S.  C.  29 

R  R  Co.  V.  Rowan,  66  Pa.  St.  393, 399 ;  S.  C.  303.   See  Beeson  v.  Green  Moimt- 

Penn.  R  R  v.  Butler,  57  id.  335,  338 ;  ain  G.  M.  Co.  57  Cal.  20 ;  Little  Rock, 

Mo.  Pac.  R.  R.  Co.  v.  Lee,  35  Am.  &  etc.  R'y  Co.  v.  Barker,  39  Ark.  491. 

Eug.  R.  R.  Cas.  364 ;  S.  C.  70  Tex.  496 ;  3  McMahou  v.  Mayor,  etc.  33  N.  Y. 

Gulf.  etc.  R'y  Co.  v.  Le\y.  12  Am.  &  642,  647. 

Eug.  R.  R.  Cas.  90,  93 ;  Baltimore,  etc.  *  TiUey  v.   Hudson    R   R.    R   Co. 

R  R  Co.  V.  Hauer,  id.  149 ;  S.  C.  60  24  N.  Y.  474 ;  Galveston,  etc.  R  R  Co. 

Md.  449 ;  North  Cliicago  Rolling  Mills  v.  Kutac,  37  Am.  &  Eng.  R  R  Cas. 

Co.  V.  Morrissey,  Adm'r,  18  Am.  &  470 ;  S.  C.  72  Tex.  643 ;  Petrie  v.  Co- 

Eng.  R.  R  Cas.  47 ;  S.  C.  Ill  lU.  646 ;  lumbia.  etc.  R  R  Co.  supra;  Railroad 

Bradburn  v.  Great  W.  R'y  Co.  L.  R  Co.  v.  Barron,  5  Wall.  90 ;  Baltimore, 

10  Ex.  1 ;  Catawissa  R.  R.  Co.  v.  Arm-  etc.  Co.  v.  Hauer,  12  Am.  &  Eug.  R.  R 

strong,  52  Pa.  St.  282 :  Kansas  Pac.  R.  C;is.  149,  155 ;  S.  C.  60  Md.  449.     See 

R.  Co.  V.  Lundin,  3  Colo.  94 ;  Macon,  Pittsbm-gh,  etc.  R,  R  Co.  v.  Vining'a 

etc.  R  R  Co.  V.  Johuson.  38  Ga.  409 ;  Adm'r,  27  Ind.  513. 

David  V.  Southwestern  R.  R.  Co.  41  id.  5  Cone  v.  Bowles,  1  Salk.  205. 
223 ;  Baltimore,  etc.  R.  R.  Co.  v.  Kelly, 


474  STRICT    CONSTRUCTION. 

or  increased  b}^  construction  or  in  any  indirect  manner  beyond 
the  amount  specified  by  Inw.^ 

§  37*?.  A  statute  which  declared  that  "in  all  actions  to  re- 
cover damages  for  torts  the  plaintiff  shall  recover  no  more 
costs  than  damages,  where  such  damages  do  not  exceed  five 
dollars,"  was  held  not  to  authorize  the  court  in  such  a  case  to 
render  judgment  against  him  for  the  residue  of  the  costs.^ 
Statutes  for  the  discharge  of  insolvent  debtors  are  in  deroga- 
tion of  the  rights  of  the  creditor,  and  should  on  principle  be 
construed  strictly.  Lord  Holt  said :  "  Let  a  statute  be  ever 
so  charitable,  if  it  gives  away  the  property  of  the  subject  it 
ought  not  to  be  countenanced."  ^  So  it  has  been  held  of  ex- 
emptions from  execution.*  There  is  in  the  purpose  and  pohcy 
of  exemption  and  homestead  statutes  considerations  which 
make  them  remedial,  and  which  neutralize  the  principle  of  strict 
construction.'  In  a  Michigan  case  it  was  said  that  such  stat- 
utes, being  remedial,  and  resting  on  a  wise  policy,  should,  as 
far  as  practicable,  be  construed  beneficially  to  the  debtor.^  A 
statute  which  subjects  one  man's  property  to  be  affected  by, 
charged  or  forfeited  for  the  acts  of  another,  on  grounds  of  pub- 
lic policy,  should  be  strictly  construed ;  it  cannot  be  done  by 
implication.'^  So  of  a  statute  which  deprives  passengers  riding 
on  the  platform  of  cars  of  compensation  for  injuries.^ 

§  373.  Another  notable  example  of  statutory  liability  is  that 
imposed  on  vendors  of  intoxicating  liquors  for  injuries  result- 
ing from  intoxication,**  and  on  lessors  of  property  occupied  for 

1  Walker  v.  Sheftall,  73   Ga.  806;  sCaUaday  v.  PiBdngton,   12  Mod. 

Adams  v.  Abram,  38  Mich.  302 ;  Van  513. 

Home  V.  Peti-ie,  2  Cai.  213 ;  Briggs  v.  ^  Buckingham  v.  BiUings,  13  Mass. 

Allen,  4  HiU,  538 ;  Farrington  v.  Ren-  82 ;  Danforth  t.  Woodward,  10  Pick, 

nie,  2  Cai.  220 ;  Van  Hovenburgh  v.  423. 

Case,  4  Hill,  541 ;  Vielie  v.  Towers,  5  Howard  v,  WiUiams,  2  Pick.  80, 

Colman  &  CaL  90 ;  Dockstader  v.  Sam-  83. 

mons,  4  HiU,  546 ;  Clark  v.  Dewey,  6  Alvord  v.  Lent,  23  Midi.  369.    See 

5  Johns.  251.     Where  the  words  of  a  posf,  §  422. 

statute  prescribing  the  compensation  '  Steamboat  Oliio  v.  Stimt,  10  Ohio 

of  a  pubUc  ofl&cer  are  loose  and  ob-  St.  582. 

Bcure,  and  admit  of  two  interpreta-  *>  Willis  v.  Long  Island  R.  R.  Co.  32 

tions,   they  should  be  consti'ued  in  Barb.  398. 

favor  of  the  officer.    United  States  v.  9  Bodge  v.  Hughes,  53  N.  H.  614 ; 

Morse,  3  Story,  87.  Brooks  v.  Cook,  44  Mich.  617 ;  Friend 

-  Ivey  V.  McQueen,  17  Ala.  408.  v.  Dunks,  37  id.  25 ;  English  v.  Beaid, 


STRICT   CONSTKUCTION.  475 

that  traffic'  The  iiabUit}'  is  expressed  iu  very  general  and 
absohite  terms,  and  the  liberality  or  conservatism  of  construc- 
tion is  illustrated  in  tlie  recognition  or  rejection  of  items  or 
classes  of  damages  claimed,  within  the  broad  range  of  the 
declared  liability ;  in  the  lax  or  stringent  appHcation  of  com- 
mon-law rules  to  the  allowance  and  estimate  of  compensation 
and  to  the  procedure  for  its  recovery. 

These  acts  give  certain  enumerated  persons  standing  in 
some  relation  to  the  person  from  whose  intoxication  or  habit- 
ual inebriety  proceeds  injury  to  means  of  support  or  otherwise, 
a  right  of  action  for  compensatory  damages,  and  often  exem- 
plary damages.  The  remedial  element  in  this  legislation  is  a 
potent  factor  in  the  interpretation  of  its  general  language; 
consequently  the  conservative  principle  of  strict  construction 
of  a  statutory  liability  has  to  a  great  extent  received  second- 
ary consideration.  The  courts  have  aimed  to  give  effect  to 
and  carry  out  the  humane  and  ameliorating  policy  of  these 
laws ;  and  while  they  do  not  transcend  their  letter,  they  do 
not  greatly  restrict  their  broad  terms.  In  a  case  of  this  nat- 
ure -  the  court  said :  "  It  cannot  be  doubted  that  the  stat- 
ute which  we  are  considering  comes  w^ithin  the  class  of  reme- 
dial statutes,  nor  that  under  the  above  authorities  ^  we  have 
ample  warrant,  were  it  necessary-,  for  giving  it  the  most  lib- 
eral construction  in  the  interest  of  justice  and  humanity." 
The  Michigan  statute  enumerates  as  entitled  to  sue  "  every 
wife,  child,  parent,  guardian,  husband  or  other  person."  The 
inebriate  himself  was  held  not  included,  and  not  entitled  to 
recover  for  money  stolen  from  him  while  drunk.  He  is 
presumably  injured  in  all  cases,  and  the  remedy  should  not 
be  extended  to  him  unless  the  intent  to  do  so  is  unequivocally 
expressed."*  It  was  held  that  the  general  words  ''  or  other 
person,"  following  the  enumeration,  must  be  understood  to 
extend  according  to  the  general  principle  to  persons  of  the 

51   Ind.   489 ;   Jackson  v.  Noble,   54  Berry,  75  N.  Y.  229 ;  :Meyers  v.  Kirt, 

Iowa,  641 ;  Medbury  v.  Watson,  6  Met  57  Iowa,  421. 

246 ;  Thorpe  v.  R.  &  B.  R.  Co.  27  Vt  -  Buckniaster  v.  :McElroy,  20  Neb. 

140 ;  In  re  Jacobs,  98  N.  Y.  98.  557. 

1  Bertliolf  V.  O'Reilly,  74  N.  Y.  509 ;  ^  Sedgwick,  274 ;  Dean  and  Chapter 

McGee  v.  McCann,  69  Me.  79 ;  Hill  y.  of  York  v.  Middlebiirgh.  2  Y.  &  J.  196. 

*  Brooks  T.  Cook,  44  Mich.  617. 


•iTG  STRICT   CONSTKUCTION. 

same  general  character,  sort  or  kind  as  those  named.'  From 
this  it  might  be  supposed  that  the  injured  person  must  stand 
in  some  relation  to  the  intoxicated  person.  It  had  been  inti- 
mated in  a  previous  case-  that  strangers  are  embraced  in  the 
same  clause  with  guardians,  relatives,  husbands  and  wives.  In 
a  very  late  case  ^  it  was  held  that  these  general  words  were 
intended  to  cover  all  persons  injured  in  person  or  property  by 
the  intoxicated  person.  As  "parent"  a  mother  may  sue  for 
damages  to  her,  at  least  in  the  absence  of  evidence  that  there 
is  a  father.^  Where  the  right  of  recovery  is  confined  to  in- 
jury to  person,  propert}^  or  means  of  support,  as  in  I^ew 
York,  a  father,  though  one  of  the  persons  enumerated  to  sue, 
cannot  maintain  the  action  if  there  is  no  injury  to  person  or 
property,  unless  the  case  shows  that  he  was  dependent  on  the 
son.'^  But  in  Massachusetts,  an  adult  son,  not  dependent  on 
the  father,  when  he  has  given  notice  forbidding  sales  to  the 
latter,  may  maintain  a  suit,  for  the  statute  implies  that  other 
damages  than  to  person,  property  or  means  of  support  may 
be  recovered.  The  statute  contemplates  that  the  habitual 
drunkenness  of  a  husband  or  wife,  parent  or  child,  is  a  sub- 
stantial injury  to  those  bound  together  in  domestic  relations, 
and  gives  a  right  to  recover  damages  in  the  nature  of  a  pen- 
alty not  only  for  iujur}^  to  the  person  or  property,  but  for 
shame  and  disgrace  brought  upon  them."  An  Iowa  statute 
declares  a  hability  for  compensation  "  to  any  person  who  may 
take  chai'ge  of  and  pro\dde  for  such  intoxicated  person."  This 
provision  was  held  not  to  include  a  physician  who  treated  pro- 
fessionally one  who  was  injured  while  intoxicated.^ 

§  374.  As  to  injuries  for  which  damages  ma}^  be  recovered 
there  is  considerable  differences  in  the  statutes,  and,  as  might 
be  expected,  noticeable  contrariety  of  decision.  It  is  essen- 
tial where  recoveries  are  allowed  for  injuries  that  there  be 
actual  damage.     The  right  of  action  does  not  spring  from  the 

'  Citing  Hawkins  v.  Great  W.  R'y  *  McNeil  v.  Collinson,  130  Mass.  167. 

Co.  17  Mich.  57 ;  McDade  v.  People,  5  Stevens  v.  Cheney,  36  Hun,  1. 

29  id.  50.  **  Taylor  v.   Carroll,   145  Mass.  95. 

2  Ganssly  v.  Perkins,  30  Mich.  492,  See  Friend  v.  Dunks,  37  Mch.  25. 
495,  'Sanson!  v.  Greenough,  55  lowa^ 

3  Flower  v.  Witkovsky.   69  Mich.  127. 
371 ;  English  v.  Beard,  51  Ind.  489. 


STRICT   CONSTRUCTION.  477 

stated  relationships  alone;  and  though  the  statute  may  in 
terms  authorize,  in  addition  to  compensation,  exemplary  dam- 
ages, the  latter  will  not  be  allowed  unless  there  is  actual  in- 
jury,' Where  the  damage  alleged  is  to  the  person,  pliysical 
injury  must  be  shown ;  it  is  not  enough  that  opprobrious  lan- 
guage was  used.-  And  to  justify  the  award  of  exemplar}^  dam- 
ages, such  circumstances  of  aggravation  must  be  proven  as 
are  on  general  principles  of  the  common  law  sufficient  to  au- 
thorize their  allowance.  They  will  not  be  permitted  unless 
the  act  of  giving  or  selling  the  intoxicating  drinks  was  wilful, 
wanton,  reckless,  or  otherwise  deserving  of  punishment  beyond 
what  the  requirements  of  compensation  would  impose.^  In 
Ohio,  however,  a  different  rule  has  been  announced.  In  that 
state  it  has  been  held  that  in  all  actions  in  which  the  plaintiff 
shows  a  right  to  recover  damages  actually  sustained,  the  jury 
may  also  assess  exemplary  damages  without  proof  of  actual 
malice  or  other  special  circumstances  of  aggravation.^  Such 
damages  only  as  are  the  natural  and  proximate  consequence  of 
the  cause  mentioned  in  the  statute  are  allowed.  General  prin- 
ciples of  the  common  law  govern  in  their  ascertainment.* 
They  are  not,  however,  confined  to  the  direct  and  immediate 
consequences  of  intoxication,  or  the  habit  of  drunkenness.  The 
statutes  give  damages  for  injuries  resulting  therefrom  to  per- 
son, property,  means  of  support,  and  in  some  cases  there  is 
added,  "  or  otherwise."  A  natural  interpretation  necessarily 
extends  the  right  of  recovery  to  consequential  injuries  as  they 
affect  the  subjects  mentioned.  It  is  not  deemed  to  be  the  in- 
tention of  the  statute  to  narrow  damages  to  injuries  from  the 
liquor  alone,  exclusive  of  other  agency.     That  would  fall  short 

1  Ganssly  v,  Perkins,  30  Mich.  493 ;  v.  Wells,  51   Hun,  171 ;  Ketcham  v. 

Calloway  v.  Laydon,  47  Iowa,  456.  Fox,  52  id.  284. 

^  Calloway  v.  Laydon,  supra.  *  Schneider  v.  Hosier,  21  Ohio  St  98. 

3  Kadgin  v.  Miller,  13  111.  App.  474 ;  » Barks  v.  Woodruff,  12  IlL  App.  96 ; 
Kreiter  v.  Nichols,  28  Mich.  496 ;  Mei-  Tetzner  v.  Naughton,  id.  148 ;  Shu- 
del  V.  Anthis,  71  111.  241 ;  Hackett  v.  gart  v.  Egan,  83  IlL  56 ;  Emory  t. 
Smelsley,  77  id.  109;  RawUns  v.  Vid-  Addis,  71  id.  273;  Hackett  v.  Smels- 
vard,  34  Hun,  205 ;  Davis  v.  Standish,  ley,  77  id.  109 ;  Schmidt  v.  MitcheU. 
26  id.  608,  616 ;  Neu  v.  ]\IcKeclmie,  84  id.  195 ;  Schi-oder  t.  Crawford.  94 
95  N.  Y.  632 ;  Roose  v.  Perkins,  9  id.  357 ;  Midford  v.  Clewell,  21  Ohio 
Neb.  304,  315;  Bates  v.  Davis,  76  111.  St.  191 ;  Neu  v.  McKechnie.  95  N.  Y. 
222 ;  Koerner  v.  Oberly,  56  Ind.  284 ;  632 ;  Friend  v.  Dunks,  37  Mich.  25 ; 
■Schaf er  v.  Smitli,  63  Ind.  226 ;  McCarty  Ganssly  v.  Perkins,  30  id.  492,  495. 


478  STRICT    COXSTRUCTION, 

of  the  remedy  intended  to  be  given.  These  statutes  are  de- 
signed for  a  practical  end,  to  give  a  substantial  remedy,  and 
should  be  allowed  to  have  effect  according  to  their  natural 
and  obvious  meaning.^  The  act  of  selling  or  giving  away  liq- 
uor to  a  drunkard,  thereby  making  him  drunk,  is  made  by  the 
legislature  identical  with  creatine;'  the  state  of  drunkenness 
which,  in  fact,  ensues  from  the  drinking.  The  party  who  thus 
furnishes  the  means  of  intoxication,  and  others  who,  like  rent- 
ers of  premises  for  that  use,  abet  it,  are  treated  as  represented 
causally  in  that  intoxication ;  that  they  do  by  the  intoxicated 
person  the  injury  to  person,  property  and  means  of  support 
which  naturally  and  proximately  results  from  the  intoxication.^ 
§  375.  But  the  consequences  must  spring  from  the  cause 
mentioned  in  the  statute,  not  from  some  other  fortuitous  cir- 
cumstance, or  the  act  of  another  person.  A  wife  cannot  main- 
tain an  action  for  damages  for  an  injury  received  by  her  fi'om 
falling  on  a  slippery  sidewalk  while  following  her  intoxicated 
husband  to  see  where  he  obtained  liquor.^  Injuries  to  the 
oerson  or  property  of  another  committed  by  the  intoxicated 
person,  acting  on  the  perverted  impulses  or  frenzies  of  intoxi- 
cation, are  recoverable.*  And  so  far  as  the  cause  mentioned 
in  the  statute,  intoxication  or  the  habit,  impairs  the  means  of 
support  by  diminishing  the  capacity  of  the  intoxicated  person 
to  earn  money  or  prudently  husband  it,  or  by  inducing  him  to 
squander  it,  an  action  will  lie  for  the  loss.''  Means  of  support 
relate  to  the  future  as  well  as  to  the  present.  In  maintaining 
an  action  for  loss  of  it,  it  must  appear  that  in  consequence  of 
the  intoxication  or  the  acts  of  the  intoxicated  person  the 
plaintiff's  accustomed  means  of  maintenance  have  been  cut  off 
or  curtailed,  or  that  he  has  been  reduced  to  a  state  of  depend- 
ence by  being  deprived  of  the  support  which  he  had  before 
enjoyed.^  Where  the  death  of  the  intoxicated  person  ensues 
from  the  intoxication  as  proximate  cause,  it  is  held  in  some 

1  Schroder  v.  Crawford,  94  111.  357,  Booth,  57  Midi.  349 ;  English  v.  Beard, 

361,  51  Ind.  489 ;  Diinlap  v.  Wagner,  85 

^  See  Schaf er  v.  State,  49  Ind.  460.  id.  529. 

3  Johnson    v.   Dnunniond,   16    IlL  5  Id. 

App.  641.  6  Volans  v.    Owen,    74  N.  Y.  526 ; 

*  King  V.  Haley,  86  IlL  106 ;  Reed  Mulford  v.  CleweU,  21  Ohio  St  191 ; 

V.  Thompson,  88  id.  245;  Englekenv.  Warrick  v.  Rounds,  17  Neb.  411. 
Hilger,    43    Iowa,    563;    Wilson    v. 


STRICT   CONSTRUCTION.  479 

states,  and,  logically,  as  it  appears  to  the  writer,  to  produce 
within  the  meaning  of  the  statute  a  total  loss  of  the  means  of 
support  which  would  otherwise  —  that  is,  in  the  absence  of  the 
wi'ono-ful  cause — be  derivable  from  him.' 

In  Mead  v.  Stratton  -  the  court  say :  "  It  is  evident  that  the 
legislature  intended  to  go  in  such  a  case  far  beyond  anything 
known  to  the  common  law,  and  to  provide  a  remedy  for  in- 
juries occasioned  by  one  who  was  instrumental  in  producing, 
or  who  caused,  the  intoxication.  AVhile  a  statute  of  this  char- 
acter should  not  be  enlarged,  it  should  be  interpreted,  where 
the  language  is  clear  and  explicit,  according  to  its  true  intent 
and  meaning,  having  in  view  the  evil  to  be  remedied  and  the 
object  to  be  attained." 

In  Schroder  v.  Crawford  ^  the  supreme  court  of  Illinois  ad- 
vance the  same  view  by  saying :  "  It  was  not  the  intention 
that  the  intoxicating  liquor  alone,  of  itself,  exclusive  of  other 
agency,  should  do  the  whole  injury.  That  would  fall  quite 
short  of  the  measure  of  remedy  intended  to  be  given.  The 
statute  was  designed  for  a  practical  end,  to  give  a  substantial 
remedy,  and  should  be  allowed  to  have  effect  according  to  its 
natural  and  obvious  meaning.  Any  fair  reading  of  the  enact- 
ment must  be  that  in  the  instances  above,*  as  well  as  the  present, 
the  death  would  have  been  in  consequence  of  the  intoxication 
within  the  undoubted  intendment  of  the  statute."  In  accord- 
ance with  this  construction,  wherever  death  or  permanent 
disability  occurs  as  the  natural  and  proximate  result  of  intoxi- 
cation, as  where  the  intoxicated  person  lies  down  and  is  frozen 
to  death,  or  drowned  by  a  freshet,  or  is  run  over  by  a  rail- 
road train,*^  or  is  permanently  injured  or  kiUed  by  other  mis- 

1  Mead  v.  Stratton,  87  N.  Y.  493 ;  McCarty  v.  Wells,  51  Hun,  171 ;  Roose 
Schroder  v.  Crawford,  94  IlL  357 ;  v.  Perkins,  9  Neb.  304 ;  S.  C.  31  Am. 
Hackett  v.  Smelsley,  77  id.  109 ;  Roose    Rep.  409. 

V.  Perkins,  9  Neb.  304: ;  Buckmaster  ^  Rosecrants  v.  Shoemaker,  60  Midi. 

V.  McElroy,   20  id.   557 ;  Rafferty  v.  4 ;  S.  C.  26  N.  W.  Rep.  794 ;  Emory  v. 

Buckman,  46  Iowa,  195.  Addis,  71   IlL  273.      In  Indiana  the 

2  87  N.  Y.  496.  death  under  such  circumstances  is 
'  94  IlL  361.  held  too  remote  an  effect  to  be  charged 
*  Emory  v.  Addis,  71  IlL  373 ;  Hack-  to  the  i)erson  who  unlawfully  sold  the 

ett  V.  Smelsley,  77  id.  109.  liquor  which  caused  the  intoxication. 

5  Hackett  v.  Smelsley,  77  IlL  109;     CoUier  v.  Early,  54  Ind.   559.      The 

Buckmaster  v.  McElroy,  20  Neb.  557 ;    court  say :    "  The    death    of   Early, 


4-SO  STRICT    CONSTRUCTION. 

chtance  or  his  own  act,  owing  to  his  helplessness,  frenz}^  ot 
abnormal  condition,  in  a  state  of  intoxication,^  this  conse- 
quence is  deemed  within  the  statute  when  the  complaint  is  for 
an  injury  to  means  of  support.  So  where  the  intoxicated  per- 
son shot  and  killed  another  and  was  convicted  of  criminal 
homicide  and  imprisoned  for  life.-  But  if  he  provokes  a  quar- 
rel and  is  killed  therein,  his  death  is  but  the  remote  conse- 
quence of  the  intoxication,  and  there  can  be  no  recovery  there- 
for against  the  vendor  of  the  liquor.^ 

§  376.  A  more  conservative  view  has  prevailed  in  some  of 
the  states.  In  Davis  v.  Justice  ^  the  supreme  court  of  Ohio 
say:  " Injuries  by  any  intoxicated  person  or  in  consequence 
of  the  intoxication,  are  the  terms  of  the  statute ;  and  it  is  con- 
tended that  if  intoxication  causes  death,  and  death  causes  in- 
jur}^, the  latter  is  within  the  meaning  of  the  act.  On  the 
other  hand,  it  is  contended  that  as  the  legislature  must  be  pre- 
sumed to  have  knovrn  the  state  of  the  common  lavr,  and  the 
extent  of  the  innovation  by  the  act  of  1851  [an  act  requiring 
compensation  for  causing  death  by  wrongful  act,  neglect  or 
default],  if  a  further  innovation  had  been  intended,  such  in- 
tention would  have  been  expressed  in  unmistakable  terms. 
We  incline  to  the  latter  view.  Indeed,  when  the  injury  to 
be  compensated  consists  in  the  loss  of  labor,  it  is  at  least 
paradoxical  to  say  that  laljor  which  could  not  be  performed 
during  the  life  of  the  laborer  is  included.  And  again,  in  con- 
struing the  words  of  the  statute  applicable  to  the  case  before 
us,  it  might  be  said  that  the  action  can  be  maintained  only  for 
an  injury  to  means  of  support  of  the  iDlaintiff  as  wife  of  the 
person  intoxicated,  and  not  for  an  injury  sustained  by  her  as 
his  widow.  She  had  an  interest  in  his  labor  and  in  his  capac- 
ity to  labor,  as  a  means  of  support,  during  his  life;  but  after 
his  death  this  means  of  support  no  longer  existed,  and  was 
not  the  subject  of  injury  or  diminution. 

caused  by  a  train  of  cars,  is  an  effect  Blatz  v.  Rohrbach,  42  Hun,  402 ;  Davis 

which  is  not  naturally,  necessarily,  v.  Standish,  26  Hun,  608 ;  Campbell 

nor  even  probably,  connected  with  v.  Sclilesinger,  48  id.  428. 

the  fact  of  unlawfully  selling  intoxi-  ^  Beers  v.  Walhizer,  43  Hun,  254. 

eating  liquors  to  him  by  the  appel-  "  Shugart  v.  Egau,  83  111  56.     See 

lant    whereby    he    became    drunk."  Lueken  v.  People,  3   111.   App.   375; 

Krach  v.  HeUman,  53  Ind.  517.  Swinfin  v.  Lowry,  37  IVIinn.  345. 

1  Volans  V.  Owen,    74  N.  Y.  526 ;  *  31  Ohio  St.  359. 


STRICT   CONSTRUCTION'.  481 

"  But  to  avoid  any  charge  of  hypercriticism,  we  place  our 
decision  upon  the  ground  that  in  view  of  the  previous  state  of 
the  law,  and  the  mischief  souglit  to  be  remedied,  we  can  find  no 
expression  in  the  statute  that  indicates  an  intention  on  the  part 
of  the  legislature  to  bring  the  loss  of  labor  caused  by  the  death 
of  the  person  intoxicated  within  the  meaning  of  the  term '  means 
of  support,'  for  an  injury  to  which  the  right  of  action  is  given 
by  the  statute."  ^  The  same  view  prevails  in  J^Iassachusetts."^  In 
Indiana  the  loss  of  "  means  of  support,"  where  death  has  oc- 
curred to  a  person  in  a  drunken,  insensible  state  in  consequence 
of  a  train  of  cars  striking  him,^  or  being  crushed  or  f ataUy  injured 
by  a  barrel  of  salt  in  the  wagon  in  which  he  was  laid  to  be 
•carried  by  a  drunken  associate,*  has  been  denied,  not  on  the 
ground  of  legislative  intention  excluding  the  right  to  recover 
in  case  of  death,  but  on  the  common-law  principle  that  the  loss 
of  support  is  too  remote  a  consequence  of  the  Avrongful  cause 
mentioned  in  the  statute.  Worden,  C.  J.,  said :  "  ^Ye  have 
seen  that,  if  the  plaintiff  is  entitled  to  recover,  it  is  because 
she  was  injured  '  in  consequence  of  the  intoxication'  of  the 
deceased.  The  immediate  cause  of  the  injury  to  the  plaintiff 
was  the  death  of  the  deceased.  The  remote  cause  may  have 
been  his  intoxication,  which  led  to  his  injuries,  wliich  injuries, 
in  their  turn,  led  to  his  death.  The  plaintiff,  therefore,  was 
not  immediately  injured  by  the  intoxication  of  the  deceased."  • 
In  CoUier  v.  Early ,«  Biddle,  J.,  said:  "The  death  had  not 
taken  place  immediately  and  directly  upon  the  cause ;  but  it 
must  be  effected  by  a  chain  of  natural  effects  and  causes,  un- 
changed by  human  action,  or  the  party  who  committed  the 
first  act  will  not  be  responsible."  ^  The  authority  of  these 
utterances  has  been  very  much  shaken  by  a  later  case.*  In 
Michigan,  though  the  statute  provides  absolutely  for  an  action 
in  favor  of  any  person  injured  in  person,  property,  means  of 
support  or  otherwise,  it  is  still  an  open  question,  and  expressly 
recognized  as  such,  whether  an  action  will  lie  against  one  who 
lawfully  sells  to  an  adult  person.     AU  the  cases  in  that  state 

1  Kirchner  v.  Myei-s,  35  Ohio  St.  85 ;        <  Krach  v.  Heilman,  53  Ind-  517. 
S.  C.  35  Am.  Rep.  598.  *  Ejrach  v.  Heilman,  supra. 

2  Barrett  v.  Dolan,  130  Mass.  366;        ^  Supra, 

S.  C.  39  Am.  Rep.  456.  TBackes  v.  Dant,  55  Ind.  181. 

3  Collier  v.  Early,  54  Ind.  559.  8  Dunlap  v.  Wagner,  85  Ind  529. 

31 


482  STKICT   CONSTRUCTION. 

have  been  jnclicially  referred  to  as  cases  where  the  sale  was- 
unlawful  because  in  violation  of  the  statute.^ 

§  377.  In  separate  actions  against  one  of  the  many  per- 
sons whose  sales  to  a  drunkard  have  contributed  to  a  particu- 
lar intoxication  or  to  a  besotted  condition,  the  measure  of  the 
defendant's  individual  responsibility  has  sometimes  been  a  sub- 
ject of  consideration.  The  question  has  been  whether  one  of  a 
number  who  has  so  contributed,  by  separate  and  distinct  sales, 
made  without  concert  or  agreement  with  the  others,  can  be 
held  liable  for  all  the  damage  which  has  resulted,  or  for  that 
part  only  which  his  own  acts  have  caused.  The  common-law 
principle  is  that  one  is  not  liable  for  the  whole  damage  done  by 
several  unless  the  wrong  was  done  Avith  such  concert  that  all 
are  jointly  liable,  and  they  are  not  jointly  liable  unless  they  did 
the  wrongful  act  jointly,  or  unless  it  was  done  by  their  precon- 
cert or  was  subsequently  jointly  ratified  and  adopted.^  This 
rule  seems  to  have  been  relaxed  and  departed  from  in  Boyd  v. 
"Watt,  to  facilitate  the  remedy.*  The  supreme  court  of  Ohio  say 
in  that  case :  "  If,  as  seems  to  be  claimed,  a  defendant  can  only 
be  liable,  except  in  cases  of  conspiracy  or  agreement,  when  he 
is  the  sole  cause  of  the  habitual  intoxication,  and  no  recovery 
can  be  had  unless  the  damages  can  be  separated  (an  impossibil- 
ity in  most  cases  of  this  class),  then  this  part  of  the  statute  is 
virtually  a  dead-letter.  Why  should  the  defendant  be  exoner- 
ated from  the  injury  he  has  caused  by  his  habitual  wrongs  for  a 
series  of  years  by  showing  that  others,  without  his  knowledge, 
have  also  contributed  by  like  means  to  this  result  ?  He  was 
using  adequate  means  to  produce  the  result,  and  may  there- 
fore fairly  be  presumed  to  have  intended  it.  True,  he  may  not 
have  enjoyed  a  monopoly  in  the  profits  accruing,  by  reason  of 
the  competition  of  others  in  a  common  business ;  but  that  cer- 
tainly is  no  reason  why  he  should  not  be  liable  for  the  injuries 
he  was  intentionally  engaged  in  causing.     If  such  is  the  law, 

1  Bell  V.  Zelmer,  75  Mich.  66.  See  provement  Co.  19  "Wis.  100 ;  La  France 
Jewett  V.  Wanshura,  43  Iowa,  574 ;  v.  KJrayer,  43  Iowa,  143 ;  Little  Schuyl- 
Myers  V.Conway,  55 Iowa,  166;  Wing  kill  Nav.  Co.  v.  Eichards,  57  Pa. 
T.  Benham,  76  id.  17 ;  Myei-s  v.  Kii-t,  St.  142 ;  Bard  v.  Yohn,  26  Pa  St  482  r 
68  Iowa,  124 ;  S.  C.  64  id.  27.  Stone  v.  Dickinson,  5  Allen,  59. 

2  1  Suth.    on    Dam.   211-216,  and  3  37  Ohio  St  259. 
cases  cited;  Lull  v.    Fox,   etc.    Im- 


8TKICT   CONSTKUCTION.  483 

then  he  could  take  advantage  of  his  own  wrong  by  showing 
that  during  these  four  years  another  or  others  had  contributed.'^ 
In  such  a  case  it  is  held  in  Iowa  that  the  wrong  is  not  joint ; 
that  several  contributing  separately  cannot  be  sued  together, 
nor  when  sued  separately  the  Avhole  damage  recovered.  Each 
is  liable  only  for  his  own  act ;  a  recovery  against  or  a  release 
of  another  is  no  defense.^ 

In  La  France  v.  Krayer  ^  the  court  say :  "A  joint  liability  arises 
when  an  immediate  act  is  done  by  the  co-operation  or  joint 
act  of  two  or  more  persons.  Mere  successive  wrongs,  being 
the  independent  acts  of  the  persons  doing  them,  will  not  create 
a  joint  habiUty,  although  the  wrongs  may  be  committed  against 
the  same  person.  There  must  be  concurrent  action,  co-opera- 
tion or  a  consent  or  approval  in  the  accomplishment  by  the 
wrong-doers  of  the  particular  wrong,  in  order  to  make  them 
jointly  liable."  But  the  court  was  careful  to  say :  "  But  we  are 
not  to  be  understood  as  denying  a  joint  liability  in  cases 
where  the  successive  sales  by  several  have  produced  a  i)articu- 
lar  intoxication  from  which  the  injury  sued  for  has  resulted." 
Accordingly,  in  a  case  which  came  before  it  the  following 
year,3  the  same  court  used  this  language :  "  If  a  dozen  saloon- 
keepers should  each  sell  a  drink  of  whisky  to  a  party,  from  the 
combined  effect  of  which  he  should  become  intoxicated,  and 
should  beat  another  or  destroy  his  property,  the  law  has  na 
means  of  determining  the  exact  amount  of  the  injury  which  is 
chargeable  to  each.  Under  such  circumstances  we  have  no 
doubt  they  are  joint  wrong-doers,  and  that  each  is  liable  for  the 
injury  done  by  all.  They  could  all  be  sued  together,  or  one, 
or  any  number  of  them,  separately.  But  there  could  be  but 
one  satisfaction  for  the  injury."  ■*    But  where  the  statute  pro- 

1  La  France  v.   Krayer,  42  Iowa,  2  42  lowa,  143,  145. 

143 ;  Flint  v.  Gauer,  66  id.  696 ;  Rich-  s  Kearney  v.  Fitzgerald,  43  Iowa,, 

mond  T,  Shickler,  57  id.  486 ;  Ennis  580,  583. 

V.   SliUey,  47  id.   553 ;    Hitcliner  v.  *  Under  the  Nebra.ska  statute  it  has 

Ehlers,  44  id.  40 ;  Ward  v.  Thompson,  been  held  in  that  state  that  an  action 

48  id.  588 ;  Engleken  v.  Webber,  47  can  be  maintained  by  the  widow  and 

id.  558 ;  Jewett  v.  Wanshura,  43  id.  infant  cliUdren,  jointly  or  severally, 

574;  Woolheather    v.   Eisley,  38  id.  whose  husband  and  father  has  lost 

486 ;  Jackson  v.   Noble,  54  id.   641 ;  his  life  in  consequence  of  intoxica- 

Keamey  v.   Fitzgerald,  43  id.  580;  tion,  against  any  and    all    persons, 

Huggins  V.  Kavanagh,  52  id.  368.  jointly  or  severally,  who  sold,  gave 


484 


STKICT   CONSTKUCTION. 


vides  for  an  action  and  authorizes  a  recovery  against  any  per- 
son who  by  selling  or  furnishing  the  intoxicating  drink  causes 


or  f  ui-nished  any  intoxicating  liquors 
wliich  were  di-ank  by  liim  on  the  day 
or  about  the  time  of  such  intoxica- 
tion. Kerkow  v.  Bauer,  15  Neb.  150. 
The  following  are  the  important  sec- 
tions of  the  Nebraska  act,  in  chap- 
ter 50,  Revised  Statutes:  "Sec.  11. 
All  persons  who  shall  seU  or  give 
away,  upon  any  pretext,  malt,  spii'it- 
uous  or  vinous  hquors,  or  any  intoxi- 
cating di'inks,  without  having  iirst 
comphed  with  the  provisions  of  this 
act,  and  obtauied  a  Ucense  as  herein 
set  forth,  .  .  .  shall  be  liable  in 
aU  respects  to  the  public  and  to  in- 
dividuals tlie  same  as  he  would  have 
been  had  he  given  bonds  and  obtained 
license  as  herein  provided. 

"  Sec.  15.  The  person  so  licensed 
shall  pay  all  damages  that  the  com- 
munity or  individual!:  may  sustain  in 
consequence  of  such  traffic ;  he  shall 
support  all  paupers,  widows  and  or- 
phans, and  the  expenses  of  all  civil 
and  criminal  prosecutions  growing 
out  of  or  justly  atti-ibutable  to  the 
traffic  in  intoxicating  drinks,  etc. 

"  Sec.  16.  It  shall  be  lawful  for  any 
maiTied  woman  or  any  other  person  at 
her  request  to  institute  and  maintain 
in  her  own  name  a  suit  on  any  such 
bond  for  all  damages  sustained  by 
herself  and  childi-en  on  account  of 
such  traffic,  etc. 

"Sec.  18.  On  the  ti'ial  of  any  suit 
under  the  provisions  hereof,  the  cause 
or  foundation  of  which  shall  be  the 
acts  done  or  injuries  inflicted  by  a 
person  under  the  influence  of  Hquor, 
it  shall  only  be  necessary,  to  sustain 
the  action,  to  prove  that  the  defend- 
ant or  defendants  sold  or  gave  Hquor 
to  the  person  so  intoxicated  or  under 
the  influence  of  hquor,  whose  acts  or 
injuries  are  complained  of,  on  that 
day  or  about  that  time  when  said 


acts  were  committed  or  said  injuries 
received,"  etc.  As  to  the  scope  or 
facihty  of  redress  under  this  legisla- 
tion, the  court  in  the  case  last  cited 
say :  "  We  cannot  apply  the  common- 
law  niles  of  pleading  to  this  casa 
Wliile  the  law  provides  for  Ucensing 
the  sale  of  intoxicating  Uquors,  it  re- 
gards the  making  of  a  person  intoxi- 
cated, or  the  selhng  or  fmnishing  a 
person  intoxicating  hquors  with 
which  he  makes  himself  intoxicated, 
as  a  tort  or  wi-ong,  and  holds  such 
person  so  selling  or  furnishing  re- 
sponsible for  certain  of  the  conse- 
quences of  such  intoxication.  And 
to  provide  against  the  difficulty,  or 
rather  impossibihty,  of  proving 
whether  it  was  the  first,  middle  or 
last  di'ink  that  caused  the  intoxica- 
tion, the  statute  provides  that  in 
such  cases  '  it  shall  only  be  necessary, 
to  sustain  the  action,  to  prove  that 
the  defendant  or  defendants  sold  or 
gave  hquor  to  the  person  so  intoxi- 
cated or  under  the  influence  of  hq- 
uor, whose  acts  or  injm-ies  are  com- 
plained of,  on  that  day  or  about  that 
time  when  said  acts  were  committed 
or  said  injmies  received.'  While 
this  statute  does  not  in  terms  state 
what  it  will  be  necessary  to  plead  or 
aUege  in  such  case,  yet  when  we  con- 
sider the  object  and  office  of  plead- 
ing, we  must  regard  the  provision  of 
the  section  as  applying  as  weU  to  the 
pleading  as  to  the  proof.  If  I  am 
correct  in  tliis  view,  then  it  made  no 
difference  that  each  of  the  defendants 
was  doing  business  for  and  by  himseK, 
and  sold  each  his  separate  glass  of 
hquor  to  the  deceased  as  his  individ- 
ual act  in  which  the  other  two  de- 
fendants had  no  interest  Wliile  the 
act  of  each  defendant  in  selhng  the 
liquor  was  his  own  individual  act, 


STRICT   CONSTKUCTION. 


485 


"  in  wliolc  or  in  jiart "  tlie  intoxication,  habitual  or  other- 
wise, there  is  no  apportionment  of  damages;  full  recovery- 
is  allowed  against  any  one  who  contributed  to  the  statutory 
wrong.^ 

§  378.  PuMic  grants  of  titles  andfranchises.— The  words 
of  a  private  grant  are  taken  most  strongly  against  the  grantor,' 
though  if  the  meaning  cannot  be  discovered  the  instrument  is 
void.*  But  this  rule  is  reversed  in  cases  of  public  grants. 
They  are  construed  strictly  in  favor  of  the  government  on 
grounds  of  public  policy."    If  the  meaning  of  the  words  be 


yet  the  law  makes  them  in  certain 
contingencies  jointly  interested  in 
and  responsible  for  the  intoxication 
caused  thereby.  And  it  was  only  nec- 
essary to  allege  and  prove  the  fact  of 
selling  or  furnishing  intoxicating  liq- 
uors by  the  defendants  to  the  deceased 
on  or  about  the  day  of  his  intoxica- 
tion." 

1  Neuerberg  v.  Gaulter,  4  111.  App. 
348 ;  Bryant  v.  Tidgewill,  133  Mass. 
86;  Werner  v.  Edmiston,  24  Kan. 
147 ;  O'Leary  v.  Frisbey,  17  lU.  App. 
553 ;  Rantz  v.  Barnes,  40  Ohio  St  43 ; 
AJdrich  v.  ParneU,  147  Mass.  409.  In 
the  Michigan  statute  this  Uabdity  is 
not  declared  in  terms  to  attach  to 
any  person  who  causes  the  intoxica- 
tion "  in  whole  or  in  part,"  but  the 
same  rule  is  applied.  Graves,  J., 
speaking  for  the  court  in  Steele  v. 
Thompson,  43  Mich.  596,  said :  "  The 
question  is  one  of  constniction ;  and 
whatever  opinion  may  have  been 
formed  in  otlier  states  of  provisions 
having  some  resemblance  to  om-s,  we 
must  attend  to  the  sense  and  spirit  of 
our  own  enactments  and  judge  ac- 
cordingly. Now  the  statute  we  are 
considering  proceeds  upon  the  idea 
that  there  has  been  an  injury  which 
the  defendant  by  some  of  the  nunms 
indicated  has  contributed  to  produce, 
and  that  he  shall  be  liable  lor  the 
whole  injury  and  not  merely  for  such 
portion  as  a  jury,  if  able  to  agree 


upon  any  scale  of  apportionment, 
may  assign  as  his  actual  share  or 
quota.  .  .  .  And  besides  being  a 
natural  intei-pretation,  and  one  which 
accords  -with  the  apparent  policy  of 
the  legislation,  it  has  the  merit  of 
reUeving  the  remedy  of  much  com- 
pUcation  and  embarrassment"  See 
Kearney  v.  Fitzgerald,  43  Iowa,  580. 

2  Co.  Lit  63a;  Shep.  ToucK  87. 

3  Taylor  v,  St  Helens,  L.  R  6  Ch. 
Div.  264. 

*  Martin  v.  Waddell,  16  Pet  411 
Mills  V.  St  Clair  Co.  8  How.  581 
Binghamton  Bridge,  3  WalL  51 
Green's  Estate,  4  Md.  Ch.  349 ;  United 
States  V.  Arredondo,  6  Pet  738-9; 
State  V.  Bentley,  23  N.  J.  L.  532,  538 ; 
Bridge  Co.  v.  Hoboken,  etc.  Co.  13  N. 
J.  Eq.  94 ;  Commonwealth  v.  Roxbmy, 
9  Gray,  451,  492 ;  Slidell  v.  Grandjean, 
111  U.  S.  412 ;  Hanmbal,  etc.  R  R 
Co.  V.  Packet  Co.  125  id.  260,  271 ; 
Cmrier  v.  Marietta,  etc.  R  R  Co.  11 
Ohio  St  22S ;  Mayor,  etc.  v.  Ohio,  etc. 
R  R.  Co,  26  Pa.  St  355 ;  Mmers'  Bank 
v.  United  States,  1  Greene  (Iowa), 
553 ;  Mayoi',  etc.  v.  Macon,  etc.  R  R 
Co.  7  Ga.  221 ;  Talmadge  v.  Coal,  etc 
Co.  3  Head,  337 ;  Brennan  v.  Brad- 
shaw,  53  Tex.  330 ;  Maddox  v. 
Graham,  2  Jlet  (Ky.)  ')Q;  Justices 
A'.  Griffin,  etc.  Plk.  R,  Co.  9  Ga.  475 ; 
Bank  of  Louisiana  v.  "Williams.  4S 
Miss.  618 ;  Gaines  v.  Coates,  51  id. 
335. 


486  STEICT   CONSTEUCTIOIT. 

doubtful  in  a  grant  designed  to  be  of  general  benefit  to  the 
public,  they  wUl  be  taken  most  strongly  against  the  grantee 
and  for  the  government,  and  therefore  should  not  be  extended 
by  impHcation  in  favor  of  the  former  beyond  the  natural  and 
obvious  meaning  of  the  words  employed.^ 

Any  ambiguity  in  the  terms  must  operate  in  favor  of  the 
government.-  Whatever  is  not  unequivocally  granted  is  taken 
to  be  withheld.'  Whether  the  grant  be  of  property,  franchises 
or  privileges,  it  is  construed  strictly  in  favor  of  the  public ; 
nothing  passes  but  what  is  granted  in  clear  and  explicit  terms ;  * 
but  it  will  be  construed  reasonably  for  the  purpose  the  act  con- 
templates.^ The  object  and  end  of  all  government  is  to  pro- 
mote the  happiness  and  prosperity  of  the  people  by  which 
it  is  established ;  and  it  cannot  be  assumed  that  the  govern- 
ment intended  to  diminish  its  power  of  accomplishing  the  end 
for  which  it  was  created."  It  is  therefore  never  implied  that 
it  has  surrendered,  in  whole  or  in  part,  any  of  its  sovereign 
power  of  legislation  for  the  general  welfare  —  of  police,  of 
taxation,  or  of  eminent  domain.^  In  its  grants  of  land  there  is 
implied  no  covenant  to  do  or  not  to  do  any  further  act  in  re- 
lation thereto.^     So  if  it  grants  a  public  franchise  to  a  corpo- 

1  Mills  V.  St.  Clair  Co.  supra.  Co.  87  Pa.  St  34 ;  Brocket  v.  Ohio  & 

2  Richmond  R.R  Co.  V.  Louisa  R.R.  P.  R.  Co.  14  id.  241.  A  chaiter 
Co.  13  How.  81 ;  Grant  v.  Leacli,  20  granted  by  two  states  to  a  railroad 
La.  Ann.  329 ;  McLeod  v.  Burroughs,  company  is  a  contract  with  it  and 
9  Ga.  213.  also  a  compact  bet-ween  the  states, 

*  Holyoke  Co.  v.  Lyman,  15  WaU.  and    is   to    be    hberaUy   construed- 

500,  512.  Cleveland  &  P.  R.  Co.  v.  Speer,  56  Pa, 

<  Rice  V.  Railroad  Co.  1  Black,  358,  St.  325. 

380 ;  Ohio  Life  &  Trust  Co.  v.  Debolt,  «  Charles  River  Bridge  v.  Warren 

16  How.  435 ;  Commonwealth  v.  Erie,  Bridge,  11  Pet.  420,  447. 

etc.  R.  R.  Co.  27  Pa.  St.  339 ;  Stour-  i  Id. ;  Providence  Bank  v.  Billings, 

bridge  Canal  v.  Wheeley,  2  Barn.  &  4  Pet.  514 ;  West  River  Bridge  Co.  v. 

Ad.  792 ;  Parker  v.  Great  W.  R'y  Co.  7  Dix,  6  Hoav.  528 ;  Bridge  Co.  v.  Ho- 

M.  &Gr.  253;  Gaines  v.Coates,  51  Miss,  boken,  etc.  Co.  13  N.  J.  Eq.  81,  94; 

335 ;  Green's  Estate,  4  Md.  Ch.  349 ;  Rice  v.  R.  R.  Co.  1   Black,  358,  380 ; 

La  Plaisance  Bay  Harbor  Co.  v.  Mon-  Holyoke  Co.  v.  Lyman,  15  WaU.  500, 

roe,  Walk.  Ch.  (Mich.)  155 ;  Townsend  512 ;  Piscataqua  Bridge  Co.  v.  New 

V.  Brown,  24  N.  J.  L.  80 ;  Mon-is  Canal,  Hampshire  Bridge  Co.  7  N.  H.  35 ; 

etc.  Co.  V.  Central  R.  R.  Co.  16  N.  J.  Turnpike  Co.  v.  State,  3  WaU.  210 ; 

Eq.   419,  436 ;  Harrison  v.  Young,  9  Lehigh  Water  Co.  v.  Easton,  121  U.S. 

Ga.  359.  388,  391. 

» Newark  Plank  R.  Co.  v.  Elmer,  9  «*  Jackson  v.  Lamphire,  3  Pet  289. 
N.  J.   Eq.  754;  Whittaker  v.   Canal 


8TRICT   CONSTRUCTION.  487 

aration,  as  to  build  and  maintain  a  road  or  bridge,  or  to  estab- 
lish a  ferry,  no  contract  is  implied  that  it  will  make  no  new 
competing  grant.' 

In  Stourbridge  Canal  v.  "Wheeley  ^  the  court  say :  "  The  canal 
having  been  made  under  an  act  of  parliament,  the  rights  of  the 
plaintiffs  are  derived  entirely  from  that  act.  This,  like  many 
other  cases,  is  a  bargain  between  a  company  of  adventurers 
and  the  pubhc,  the  terms  of  which  are  expressed  in  the  stat- 
ute ;  and  the  rule  of  construction  in  all  such  cases  is  now  fully 
established  to  be  this :  that  any  ambiguity  in  the  terms  ol  the 
contract  must  operate  against  the  adventurers  and  in  favor  of 
the  pubhc ;  and  the  plaintiffs  can  claim  nothing  that  is  not 
clearly  given  to  them  by  the  act."  "  And  the  doctrine  thus  laid 
down,"  says  Taney,  C.  J.,  speaking  for  the  court  in  Charles 
Eiver  Bridge  v.  Warren  Bridge,^  "  is  abundantly  sustained  by 
the  authorities  referred  to  in  this  decision.  The  case  itself 
was  as  strong  a  one  as  could  well  be  imagined  for  Sfivinir  to 
the  canal  company,  by  implication,  a  right  to  the  tolls  they  de- 
manded. Their  canal  had  been  used  by  the  defendants  to  a 
very  considerable  extent  in  transporting  large  quantities  of 
coal.  The  rights  of  all  persons  to  navigate  the  canal  were  ex- 
pressly secured  by  the  act  of  parHament,  so  that  the  company 
could  not  prevent  them  from  using  it,  and  the  toll  demanded 
was  admitted  to  be  reasonable.  Yet,  as  they  only  used  one  of 
the  levels  of  the  canal,  and  did  not  pass  through  the  locks ;  and 
the  statute  in  giving  the  right  to  exact  the  toll  had  given  it 
for  articles  which  passed  '  through  any  one  or  more  of  the 
locks,'  and  had  said  nothing  as  to  toll  for  navigating  one  of 
the  levels,  the  court  held  that  the  right  to  demand  toll,  in  the 
latter  case,  could  not  be  implied,  and  that  the  company  were 

*  Charles  Rivei-  Bridge  v.  "Warren  U.  S.  791 ;  Mintui-n  v.  Larue,  23  How. 

Bridge,  supra;  Leliigh  Water  Co.  v.  435 ;  Birmingham,  etc.  St  R'y  Co.  v. 

Easton,  supra;  Tuckahoe  C.  Co.  v.  T.  Bkmingham  St  R'y  Co.  79  Ala  465 ; 

R.  R  Co.  1 1  Leigh,  42 ;  Saginaw  Gas  Brenham  v.  Brenham  Water  Co.  67 

Light  Co.  V.  Saginaw,  28  Fed.  Rep.  Tex.    542 ;    Grand    Rapids    Electric 

^o29;  State    v.  Cincinnati  Gas  Light  Light,  etc.  Co.  v.  Grand  Rapids,  eta 

-Co.  18  Oliio  St   262 ;  Davenport  v.  Co.  33  Fed.  Rep.  659. 

Kleinschmidt  6  Mont  502 ;  Noi-wich  2  o  garn.  &  Ad.  793. 

Gas  Light  Co.  v.  Noi-vvich  City  Gas  sil  Pet  545. 
VJo.  25  Conn.  18 ;  Wright  v.  Nagle,  101 


4:88  STEICT    CONSTKTJCTION. 

not  entitled  to  recover  it.  This  was  a  fair  case  for  an  equi- 
table construction  of  the  act  of  incorporation,  and  for  an  im- 
plied grant,  if  such  a  rule  of  construction  could  ever  be  per- 
mitted in  a  law  of  that  description.  For  the  canal  had  been 
made  at  the  expense  of  the  company;  the  defendants  had 
availed  themselves  of  the  fruits  of  their  labors  and  used  the 
canal  freely  and  extensively  for  their  own  profit.  Still  the 
right  to  exact  toll  could  not  be  implied,  because  such  a  privi- 
lege was  not  found  in  the  charter."  Under  a  grant  to  a  plani- 
road  company  to  lay  its  road  on  an  established  highway  it  is 
not  authorized  to  take  exclusive  possession  and  deprive  the 
public  of  its  use.^  Authority  to  incorporate  does  not  include 
the  right  to  take  lands  by  devise.^ 

§  379.  These  principles  have  been  steadily  recognized  in  the 
construction  of  land  grants  made  by  the  federal  government  in 
aid  of  railroads  and  other  like  enterprises.'*  These  grants  are 
laws  as  well  as  contracts,  and  are  to  be  construed  to  effectuate 
the  legislative  intent,  and  this  must  sometimes  be  deduced  from 
complex  provisions.  To  ascertain  such  intent  the  court  may 
look  to  the  condition  of  the  country  when  the  acts  were  passed 
as  well  as  to  the  purpose  declared  on  their  face,  and  read  aU 
parts  of  them  together.*  Grants  of  lands  on  water-courses 
from  the  state,  with  the  appurtenances,  do  not  convey  the 
right  of  public  ferry,  though  the  right  of  private  ferry  passes 
with  the  fee.*  A  public  franchise  can  be  created  only  by  an 
act  of  the  legislature.^    Acts  for  the  incorporation  of  municipal 

1  Justices  V.  Griffin,  etc.  Plank  R  113  U.  S.  618;  Jackson,  etc.  E.  R  Co. 
Co.  9  Ga.  475.  v.  Davison,    65  Mich.  416 ;   Nash  v. 

2  Jackson  v.  Hammond,  2  CaL  Cas.  Sullivan,  29  Minn.  206 ;  Schulenberg 
337 ;  Corporation  v.  Scott,  1  Cai.  544 ;  v.  Harrinian,  21  Wall.  44 ;  Missouri, 
Jackson  v.  Cory,  8  John.  385.  etc.  R  R.  Co.  v.  K.  R  R  R  Co.  97 

3  Leavenworth,  etc.  R.  R  Co.  v.  U.  S.  491 ;  St.  Paul,  etc.  R  R  Co.  v. 
United  States,  92  U.  S.  733 ;  Rice  v.  Greenhalgh,  26  Fed.  Rep.  563 ;  Wol- 
RaDroad,  1  Black,  358;  Slidell  v.  cott  v.  Des  Moines  Co.  5  WalL  681; 
Grand  jean.  111  U.  S.  413;  Jackson,  Wolsey  v.  Chapman,  101  U.  S.  755; 
etc.  R  R  Co.  V.  Davisoii,  65  Mich.  Dubuque  R  R  Co.  v.  Des  Moines 
416 ;  St.  Paul,  etc.  R'y  Co.  v.  Phelps,  R  R.  Co.  109  U.  S.  329 ;  Kansas  Pa- 
26  Fed.  Rep.  569;  Swann  v.  Jenkins,  cific  R'y  Co.  v.  Dunmeyer,  113  id. 
82  Ala.  478 ;  Dubuque,  etc.  R  R.  Co.  629. 

V.  Litchfield,  23   How.  66 ;  Nash  v.        &  Harrison  v.  Young,  9  Ga.  359. 
Sulhvan,  29  Minn.  206.  «  Clark  v.  Wilkie,  4  Sti'ob.  259.    See 

♦  Winona,  etc.  R  R  Co.  v.  Barne3%    Wiswall  v.  Hall,  3  Paige,  313. 


STRICT   CONSTKUCTION.  489 

corporations  and  grants  of  power  therein  arc  to  be  strictly 
construed.^ 

§  380.  As  municipal  corporations  are  vested  with  a  portion  of 
the  authority  which  pro})erly  appertains  to  the  sovereign  power 
of  the  state,  they  must  be  confined  to  those  powers  which  are 
clearly  granted,  as  it  is  only  by  such  grants  that  the  govern- 
ment proper  can  delegate  its  just  authority.  JSTor,  as  a  gen- 
eral rule,  can  any  evil  arise  from  such  construction,  since  the 
inhabitants  of  the  corporation  are  not  deprived  of  that  protec- 
tion which  the  state  extends  to  her  citizens  in  general.  The 
power  of  the  corporation  is  merely  something  added,  as  to  the 
particular  locality,  to  the  general  powers  of  government; 
or,  in  other  words,  it  is  a  special  jurisdiction,  created  for 
specified  purposes,  and,  like  all  such  jui-isdictions,  it  must  be 
confined  to  the  subjects  specially  enumerated.-  The  settled 
rule  of  construction  of  grants  by  the  legislature  to  corporations, 
whether  public  or  private,  is  that  only  such  powers  and  rights 
can  be  exercised  under  them  as  are  clearly  comprehended 
within  the  words  of  the  act  or  derived  therefrom  by  necessary 
implication,  regard  being  had  to  the  objects  of  the  grant. 
Any  ambiguity  or  doubt  arising  out  of  the  terms  used  by  the 
legislature  must  be  resolved  in  favor  of  the  pubhc.^ 

1  Commissioners  v.  Andrews,  18  15  Jolin.  358 ;  Leonard  v.  Canton,  35 
Ohio  St.  64 ;  Treadwell  v.  Commis-  Miss.  189 ;  Hodges  v.  Buffalo,  2  Denio, 
sioners,  11  id.  190.  110 ;  Clark  v.  Davenport,  14  Iowa,  495 ; 

2  Leonard  v.  Canton,  35  IMiss.  189 ;  Merriam  v.  Moody's  Ex'rs,  25  id.  163 ; 
Mills  V.  Williams,  11  Ired.  L.  558.  Lafayette  v.  Cox,  5  Ind.  38 ;  Smith  v. 

3  Mintum  v.  Larue,  23  How.  435 ;  Madison,  7  id.  86 ;  Kyle  v.  Malin,  8  id- 
DilL  on  Mim.  Corp.  §§  22,  55  and  notes ;  34,  37 ;  Douglass  v.  Placer\  illo,  18  Cal. 
Lima  v.  Cemetery  Asso.  5  Am.  &  643 ;  Wallace  v.  San  Jose,  29  id  180 ; 
Eng.  Corp.  Cas.  547 ;  S.  C.  42  Oliio  Argenti  v.  San  Francisco,  16  id.  282 ; 
St  128 ;  Bridgeport  v.  R.  R  Co.  Nichol  v.  Nashville,  9  Humph.  252 ; 
15  Conn.  475,  501 ;  Dugan  v.  Bridge  People  v.  River  Raisin,  etc.  R.  R.  Co.  13 
Co.  27  Pa.  St  303 ;  Petersburg  v.  Midi.  389 ;  Willard  v.  Newburj-port 
Metzker,  21  IlL  205 ;  Cleveland,  etc.  12  Pick.  227 ;  Keyes  v.  Westford,  17  id. 
R  R  Co.  v.  Erie,  27  Pa.  St  380 ;  New  273 ;  Commonwealth  v.  Turner,  1 
London  v.  Brainard,  22  Conn.  552 ;  Cush.  493 ;  Cooley  v.  Granville,  10  id. 
Hartford  Bridge  Co.  v.  Union  Ferry  56 ;  Vincent  v.  Nantucket,  12  id. 
Co.  29  id.  210 ;  Thomson  v.  Lee  Co.  3  103 ;  Paine  v.  Spratley,  5  Kan.  525 ; 
Wall.  327 ;  Thomas  v.  Richmond,  12  Trustees,  etc.  v.  [McConnel,  12  IlL  140 ; 
id.  349;  Bridge  Co.  v.  Hoboken,  etc.  Caldwell  v.  Alton,  33111.416;  DeRus- 
Co.  13  N.  J.  Eq.  81 ;  Stetson  v.  Kempton,  sey  v.  Davis,  13  La.  Ann.  468 ;  Mays 
13  Mass.  272 ;  People  v.  Utica  Ins.  Co.  v.   Cinciimati,  1  Ohio  St.  268 ;   Com- 


490  STRICT    CONSTKUCTION'. 

§  381.  This  principle  is  derived  from  the  nature  of  corpora- 
tions, the  mode  in  which  they  are  organized  and  in  which 
their  affairs  must  be  conducted.  In  aggregate  corporations, 
as  a  general  rule,  the  act  and  will  of  a  majority  is  deemed  in 
law  the  act  and  will  of  the  whole  —  as  the  act  of  the  corporate 
body.  The  consequence  is  that  a  minority  must  be  bound, 
not  only  without  but  against  their  consent.  Such  an  obhga- 
tion  may  extend  to  every  onerous  duty :  to  pay  money  to  an 
unlimited  amount,  to  perform  services,  to  surrender  lands,  and 
the  like.  It  is  obvious,  therefore,  that  if  this  liabihty  were  to 
extend  to  unlimited  and  indefinite  objects,  the  citizen,  by  be- 
ing a  member  of  a  corporation,  might  be  deprived  of  his  most 
valuable  personal  rights  and  liberties.  The  security  against 
this  danger  is  in  a  steady  adherence  to  the  principle  stated, 
namely,  that  corporations  can  only  exercise  their  powers  over 
their  respective  members  for  the  accomplishment  of  limited 
and  defined  objects.  And  if  this  principle  is  important  as  a 
general  rule  of  social  right  and  municipal  law,  it  is  of  the  high- 
est importance  in  those  states  where  corporations  have  been 
extended  and  multiplied  so  as  to  embrace  almost  every  object 
of  human  concern.^  The  natural  construction  of  a  charter 
creating  a  corporation  is  that  all  the  privileges  conferred,  all 
the  duties  declared,  and  all  the  burdens  imposed,  relate  to  it 
as  a  whole,  and  not  to  the  individuals  composing  it.  And 
although  it  may  be  enacted,  it  ought  to  be  clearly  done,  before 
the  corporators,  as  natural  persons,  can  be  affected." 

§  382.  It  results  from  these  principles  that  a  corporation 
cannot  be  brought  into  existence  except  by  a  statute  immedi- 
ately creating  it,  or  authorizing  proceedings  for  its  organiza- 
tion.'' The  charter  serves  a  twofold  purpose :  It  operates  as 
a  law  conferring  upon  the  corporation  the  right  or  franchise 

missioners   v.    Mighels,    7    id.    109 ;  restrictions  upon  the  rights  of  a  com- 

GaUia  Co.  v.  Holcomb,  7  Ohio,  232 ;  munity,  but  to  promote  science  and 

State   V.   Mayor,  5    Port   279;    City  the  useful  ai-ts,  and  are  to  be  liberally 

Council  V.  Plank  R.  Co.  31  Ala.  76 ;  construed.     Blanchard  v.  Sprague,  2 

Burnet,  Ex  parte,  30  id.  461 ;  Bangs  v.  Story,  164. 

Snow,  1  Mass.  181 ;   Le  Couteulx  v.  i  Spaulding  v.  Lowell,  23  Pick.  71. 

Buffalo,  33  N.  Y.  333 ;  Waxahachie  v.  2  state  v.  Bank  of  Newbern,  1  Dev. 

Bro^vn,  67  Tex.  519 ;  Pittsburgh's  Ap-  &  Bat.  Eq.  219. 

peal,  115  Pa.  St.  4.     Patents  for  inven-  »  1  Morawetz  on  Corp.  §  317. 

tionfl  are  not  granted  as  monopolies  or 


STKICT   CONSTKtlCnON.  491 

to  act  in  a  corporate  capacity,  and  furthermore  it  contains 
the  terms  of  the  fundamental  agreement  between  the  corpo- 
rators themselves.^  The  powers  of  a  corporation  organized 
under  statutes  are  such,  and  such  only,  as  the  statutes  con- 
fer. Consistently  with  the  rule  applicable  to  all  acts,  that 
what  is  fairly  implied  is  as  much  granted  as  what  is  expressed, 
it  is  true  that  the  charter  of  a  corporation  is  the  measure  of 
its  powers,  and  that  the  enumeration  of  those  powers  implies 
the  exclusion  of  all  others.^ 

§  383.  Ko  particular  form  of  words  is  necessary  to  create 
;i  corporation,  but  the  intention  to  do  so  must  be  plainly  in- 
!  licated  by  the  statute.  If  the  purpose  be  left  doubtful,  the  act 
will  be  construed  against  the  claim  of  the  parties  setting  it  up.' 
The  incorporation  may  result  from  necessary  imphcation  in 
the  construction  of  a  statute,  as  well  as  its  purpose  and  powers. 
But,  while  express  words  of  incorporation  are  not  essential  to 
create  a  corporation,  and  one  may  arise  without  such  words 
out  of  the  general  language  of  a  statute,  if  a  corporation  is 
necessary  to  accomplish  the  purpose  of  the  act,  still  where  no 
such  necessity  exists  or  such  intention  is  otherwise  implied  a 
corporation  will  not  be  created  by  implication.*  A  general 
law  providing  the  mode  in  which  private  corporations  may  be 
organized  for  business  purposes  will  warrant  the  organization 
of  a  corporation  for  any  purpose  which  is  within  the  language 

1 1  Morawetz  on  Corp.  §  316.  Dock  Co.  40  Cal.  83 ;  PuUan  v.  Cincin- 

2  Thomas  v.  Raili-oad  Co.  101  U.  S.  nati,  etc.  R.R.  Co.  4  Biss.  35  ;]\Iatthews 

82 ;  Richmond,  etc.  R.  R.  Co.  v.  Lou-  v.  Skinker,  62  Mo.  329 ;  State  v.  Krebs, 

isa    R.    R    Co.  13  How.  91;    Dart-  64  N.  C.  604 ;  New  London  v.  Brainard, 

mouth    College     v.     Woodwai-d,    4  22  Conn.  552 ;  Brooklyn  Gravel  R,  Co. 

Wheat.  581,  636 ;  Fertilizing  Co.  v.  v.  Slaughter,  33  lud.  185 ;  Belkneyer  v. 

Hyde  Park,  97  U.  S.  659 ;  Perrine  v.  Independent  Dist.  etc.  44  Iowa,  564 ; 

Chesapeake,  etc.   Canal  Co.  9  How.  Babcock  v.  New  J.  Stockyard  Co.  20 

172 ;  Bank  of  United  States  v.  Dan-  N.  J.  Eq.  296 ;  Aug.  &  A.  on  Corp. 

dridge,  12  Wheat   68;  Steam  Nav.  gill. 

Cq  v.  Dandridge,  8   Gill  &  J.  318;  ^Fenn.  R.  R.  Co.  v.  Canal  Com'rs, 

Ruggles  V.  Illinois,  108  U.  S.  526 ;  Head  21  Pa.  St.  9.    See  1  Waterm.  on  Corp. 

V.  Providence  Ins.    Co.    2   Cr.  127;  §29. 

Wecklerv.  First  Nat  Bank,  42  Md.  <  Walsh  v.  Trustees,  etc.  96  N.  Y. 

581 ;  Brady  v.  Mayor,  etc.  20  N.  Y.  427 ;  S.  C.  6  Am.  &  Eng.  Corp.  Cas. 

312 ;  Tyng  v.  Commercial  Warehouse  45 ;  Kreiger  v.  Slielby  R.  R.  Co.  84  Ky. 

Ca58id.308;Strausv.  EagleIus.Co.  5  66;   Newport    Marsh    Trustees,    Ex 

Ohio  St  59 ;  Overmyer  v.  WiUiams,  parte,  16  Sim.  346. 

15  Ohio,  31 ;  Vandall  v.  South  T.  F. 


492  STKICT   CONSTKUCTIOJS. 

and  import  of  the  statute,  though  such  particular  purpose  be 
one  that  the  legislature  could  not  have  foreseen — as  where  it  is 
to  utilize  a  subsequent  invention.  Thus,  under  a  general  act 
authorizing  the  formation  of  corporations  for  the  purpose  "  of 
building  and  operating  telegraph  lines  or  conducting  the  busi- 
ness of  telegraphing  in  any  way,"  telephone  corporations  may 
be  organized  and  operate,  because  it  is  a  mode  of  telegraph- 
ing.^ In  this  case  Cassoday,  J.,  speaking  for  the  court,  said : 
"As  for  the  difference  in  the  mode  of  communication  by  means 
of  a  telegraphic  and  a  telephonic  apparatus,  see  Attorney- 
General  V.  Edison  Telephone  Co.  of  London.^  In  that  case 
Mr.  Stephen,  one  of  the  judges  of  the  exchequer  division  of 
the  high  court  of  justice,  who,  unhke  most  American  judges, 
seems  to  have  sufficient  time,  not  only  to  satisfy  his  own  curi- 
osity, but  the  curiosity  of  all  the  curious,  has  given  a  very 
lengthy  and  definitive  discussion  of  that  subject.  In  that  case 
the  court  conclude  that  Edison's  telephone  was  a  telegraph, 
within  the  meaning  of  the  telegraph  acts,  although  the  tele- 
phone was  not  invented  nor  contemplated  when  those  acts 
were  passed.  It  is  there  said,  in  effect,  that  the  mere  'fact,' 
if  it  is  a  fact,  that  sound  itself  is  transmitted  by  the  telephone,, 
establishes  'no  material  distinction  between  telephonic  and 
telegraphic  communication,  as  the  transmission,  if  it  takes 
place,  is  performed  by  a  wu^e  acted  on  by  electricity.'  It  is 
there  further  said  that,  '  of  course,  no  one  supposes  that  the 
legislature  intended  to  refer  specifically  to  telephones  many 
years  before  they  were  invented,  but  it  is  highly  probable 
that  they  would,  and  it  seems  to  us  clear  that  they  actuaUy 
did,  use  language  embracing  future  discoveries  as  to  the  use 
of  electricity  for  the  purpose  of  conveying  intelligence.'  It 
is  upon  this  theory  of  progressive  construction  that  the  powers 
conferred  upon  congress  to  regulate  commerce  and  to  establish 
post-otfices  and  post-roads  have  been  held  not  confined  to  the 
instrumentahties  of  commerce  or  of  the  postal  service  kno  »vn 
when  the  constitution  was  adopted,  but  keep  pace  with  the 
progress  and  development  of  the  country,  and  adapt  them- 
selves to  the  new  discoveries  and  inventions  which  have  been 

1  Wisconsin  Telephone  Co.  v.  Osh-       ^JL.  R.  C  Q.  B.  Div.  244 
kosh,  63  Wis.  32 ;  S.  C.  8  Am.  &  Eug. 
Corp.  Cas.  538. 


6TKICT   CONSTEUCTION.  493 

brought  into  requisition  since  the  constitution  was  adopted, 
and  hence  include  carriage  by  steamboats  and  railways,  and 
the  transmission  of  intelligence  by  telegraph."  ^ 

§  384.  A  city  having  the  power  to  make  contracts  and  to 
provide  itself  with  water  or  other  necessary  thing  is  not  thereby 
authorized  to  grant  to  a  company  the  exclusive  right  to  sujv 
ply  it  for  a  given  period.-  A  statute  conferring  upon  the 
common  council  of  a  city  jurisdiction  to  judge  of  the  election 
of  its  own  members  does  not  exclude  the  jurisdiction  of  the 
courts  in  that  behalf,  unless  the  grant  of  power  to  the  council 
is  expressly  or  by  necessary  implication  exclusive.'  A  power 
conferred  by  the  charter  on  the  common  council  to  provide 
for  lighting  the  city,  and  to  alter  lamp  districts,  cannot  be  del- 
egated to  a  committee  for  final  decision.* 

§  385.  When  a  corporation  has  been  organized  for  a  specific 
purpose  it  must  pursue  the  mode  prescribed  for  effecting  that 
object  and  observe  prohibitions ;  but  otherwise  it  may  proceed 
in  the  customary  way,  and  in  its  business  adopt  the  same 
methods  to  attain  its  legitimate  objects,  and  deal  in  precisely 
the  same  way,  as  natural  persons  may  who  seek  the  accom- 
plishment of  the  like  ends.* 

iPensacola  Telegraph  Co.  v.  W.  U.  66  Tex.  428;  Whyte  v.  Mayor,  etc.  2 

TeL  Co.  96  U.  S.  1.    See  State  v.  Cin-  Swan,  364 
cinnati,  etc.  Co.  18  Ohio  St.  262.  •''  Barry    v.  Merchanta'    Exchange 

2  Brenham  v.  Brenham  Water  Co.  Co.  1  Sandf .  Ch.  289 ;  WiUmarth  v. 
67  Tex.  542 ;  Leliigh  Water  Co.  .v.  Crawford,  10  Wend  342 ;  Beera  v. 
Easton,  121  U.  S.  388 ;  Davenport  v.  Plioenix  Glass  Co.  14  Barb.  358 ;  Part- 
Kleinschmidt,  6  Mont  502 ;  Saginaw  ridge  v.  Badger,  25  id.  146 ;  Richai'd- 
Gas  Light  Co.  v.  Saginaw,  28  Fed.  son  v.  Mass.  Charitable  Asso.  131 
Eep.  529 ;  State  v.  Cincmnati  Gas  L.  Mass.  174 ;  State  v.  Bank  of  Md.  6  GiU 
&  C.  Co.  18  Ohio,  262 ;  Grand  Rapids  &  J.  205;  Clark  v.  Farriugton,  11 
E.  L.  Co.  V.  Grand  Rapids  E.  etc.  Co.  Wis.  306,  333 ;  Wendel  v.  State,  62  id. 
33  Fed.  Rep.  659 ;  Gas  Co.  v.  Parkers-  300,  304 ;  AVhite  W.  Valley  Canal  Co. 
burg,  30  W.  Va.  435 ;  Citizens'  Gas,  v.  Vallctte,  21  How.  414,  424 ;  Union 
etc.  Co.  V.  Elwood,  114  Ind.  332.  Bank  v.  Jacobs,  6  Huuiph.  515,  525; 

3  State  ex  reL  v.  Kempf,  69  Wis.  Ohio  Life  Ins.  etc.  Co.  v.  Merchants' 
470,  and  authorities  cited.  But  see  Ins.  etc.  Co.  11  id.  1,  22 ;  INIayor,  etc.  v. 
People  V.  Metzker,  47  CaL  524 ;  Pea-  Second  Ave.  R.  R.  Co.  32  N.  Y.  261 ; 
body  V.  School  Com.  115  Mass.  383;  State  v.  Washington  Social  L.  Co.  11 
Commonwealth  v.  Leech,  44  Pa,  St  OMo,  96 ;  Webster  v.  People,  98  111. 
332;  Lamb  v.  Lynd,  id.  336;  Com-  343;  Bank  of  Augusta  v.  Eaiie,  13 
monwealth  v.  Meeser,  id.  341.  Pet   519 ;  Hay  ward  v.   Pilgrim   So- 

*  Mnneapolis  Gas  L.  Co.  v.  Minne-  ciety,  21  Pick.  270,  276 ;  Baird  v.  Bank 
apolis,  36  Minn.  159;  Russell  v.  Cage,     of  Washington,  11   Serg.  &  R  418; 


494:  STRICT   CONSTKUCTION. 

§  386.  Public  rights  will  not  be  treated  as  relinquished  or 
conveyed  away  by  inference  or  legal  construction.^  Statutes 
permitting  the  state  to  be  sued  are  in  derogation  of  its  sov- 
ereio*nty  and  wiU  be  strictly  construed.^  Where  a  municipal 
corporation  was  granted  the  privilege  "  to  use  the  ground  or 
soil  under  any  roads,  railroad,  highway,  street  line,  alley  or 
court  within  this  state,"  for  conduits  to  convey  water,  on  con- 
dition of  restoring  the  surface  to  the  original  condition,  it  was 
held  that  the  placing  of  the  pipes  pursuant  to  this  grant  under 
a  street  did  not  preclude  the  city  authorities  from  changing 
the  grade  of  the  street,  and  thereupon  compelling  the  grantee 
to  lower  the  pipes.^  A  public  grant  of  land  bordering  on  tide 
water  will  not,  without  express  words,  convey  the  seashore 
between  high  and  low-water  mark.*  And  where  an  act  ex- 
tends a  municipality  over  such  waters,  it  will  acquire  no  prop- 
erty in  the  soil  within  those  limits.'  For  many  purposes 
connected  with  civil  and  criminal  proceedings  and  judicial  juris- 
diction, the  body  of  a  county  extends  not  only  over  the  sea- 
shore, but  to  some  distance  below  the  ebb  of  the  tide ;  and  for 
the  like  purposes,  towns  may  be  considered  as  having  a  co- 
extensive jurisdiction;  but  this  has  no  bearing  upon  the  ques- 
tion of  property.  An  act  of  incorporation,  therefore,  without 
words  of  grant  of  the  soil,  would  vest  no  part  of  the  property 
of  the  government  in  such  town.  Nor  was  the  purpose  of  the 
organization  of  such  a  nature  as  would  require  of  the  govern- 
ment any  portion  of  the  public  right  vested  in  it  for  the  public 
use  and  benefit,  and  therefore  no  portion  of  the  jus  publicum 
will  be  presumed  to  have  been  granted  without  express  words.^ 
A  grant  of  a  right  to  build  a  bridge  does  not  confer  a  right  to 
obstruct  navigation.'    Nor,  under  a  general  power  to  a  munic- 

Chester  Glass  Co.  v.  Dewey,  16  Mass.  3  Jersey  City  v.  Hudson,  supra. 

102;  Story  on  Bills,   879;   2  Kent's  4  Commonwealth    v.     Roxbury,    9 

Com.  239 ;  1  Moraw.  on  Coi-p-  §  320 ;  Gray,  451 ;  East  Haven  v.  Heming- 

Ang.  &  A.  on  Corp.  §§  111,  145 ;  1  way,  7  Conn.    186 ;    Middletown  v. 

Waterm.  on  Corp.  §  147.  Sage,  8  id.  221 ;  Austin  v.  Carter,  1 

1  Jersey  City  v.  Hudson,  13  N.  J.  Mass.  230. 

Eq.  420;  Harrison  v.  Yotmg,  9  Ga  ^palmer  v.  Hicks,  6  Jolm.  133. 

359 ;  Bennett  v.  McWhoi-ter,  2  W.  Va.  «  Per  Shaw,  C.  J.,  in  Commonwealth 

441 ;  People  v.  Lambier,  5  Denio,  9 ;  v.  Roxbury,  9  Gray,  494. 

Mayor,  etc.  v.  Baltimore,  etc.  R  R.  '  Selman  v.  Wolfe,  27  Tex,  68.    See 

Co.  6  Gill,  288.  Inhabitants  of  Charlestown  v.  County 

2  Raymond  v.  State,  54  Miss.  562.  Com'rs,  3  Met.  203. 


STRICT   CONSTRUCTION.  495 

ipal  corporation  to  lay  out  highways,  can  it  lay  out  a  liighway 
over  a  navigable  river  so  that  it  may  be  obstructed  by  a  bridge.' 
A  statute  conferring  privileges  upon  individuals  should  not  be 
so  construed  as  to  work  a  public  mischief.  Accordingly  where 
an  act  of  the  legislature  authorized  a  proprietor  of  lands  lying 
on  the  East  river  —  which  is  an  arm  of  the  sea  —  to  construct 
wharves  and  bulkheads  in  the  river  in  front  of  his  land,  and 
there  was  at  that  time  a  public  highway  through  the  land, 
terminating  at  the  river,  he  had  no  right,  by  filling  up  the 
land  between  the  shore  and  the  bulkhead,  to  obstruct  the 
pubhc  right  of  passage  from  the  land  to  the  water ;  but  the 
street,  by  operation  of  law,  extended  from  the  former  termi- 
nus over  the  newly-made  land  to  the  water.^ 

§  387.  Statutes  for  exercise  of  power  of  eminent  domain. — 
The  right  to  take  private  property  in  any  form,  without  the 
consent  of  the  owner,  is  a  high  prerogative  of  sovereignty, 
which  no  individual  or  corporation  can  exercise  without  an 
express  grant.  The  power  may  be  delegated  but  the  delega- 
tion must  plainly  appear.'  It  is  accordingly  held  that  statutes 
providing  for  such  a  taking  under  the  exercise  of  the  power 
of  eminent  domain  must  be  strictly  construed.^    It  is  a  taking 

1  Commonwealtli  v.  Coombs,  2  their  execution  and  in  wliom  it  must 
Mass.  489 ;  Arundel  v.  McCulloch,  10  of  necessity  vest  large  discretiouary 
i(j.  70.  powers,  tlie  interpretation  should  be 

2  People  V.  Lambier,  5  Denio,  9.  hberal  Care  should  be  taken  on  the 
See  Galveston  v.  Menard,  23  Tex,  349.  one  hand  to  secure  to  the  individual 

3  Sharp  V.  Speir,  4  Hill,  76 ;  Adams  whose  property-  is  appropriated  to  the 
V.  Saratoga,  etc.  R  R.  Co.  10  N.  Y.  pubhc  a  just  and  reasonable  compen- 
328;  Gilmer  v.  Lime  Pomt,  19  CaL  sation,  and,  on  tlie  other,  that  the 
47,  60 ;  Cm-ran  v.  Shattuck,  24  id.  427,  objects  contemplated  by  the  grant  of 
432 ;  Cavanagh  v.  Boston,  139  Mass.  powers  shall  not  be  defeated  or  em- 
426.  In  Maryland  it  is  settled  that  barrassed.  Tide  "Water  Canal  Co.  v. 
the  power  to  take  private  property  Archer,  9  Gill  &  J.  479. 

for  pubhc  use  upon  making  just  com-  *  Matter  of  "Water  Com'rs  of  Am- 

pensation  may  be  exercised  for  the  sterdam,  96  N.  Y.  351 ;    Bensley  v. 

benefit  of  the  pubhc,  by  individuals  Mountam  Lake  "Water  Co.  13  CaL  306, 

or  by  corporations  upon  whom  the  315 ;   Gilmer  v.  Lime  Point,  supra; 

legislature  has  within  proper  limita-  Curran  v.  Shattuck,  supra;  Lance's 

tions  conferred  the  power  so  to  exer-  Appeal,    55    Pa.    St.    16;     Beaty   v. 

cise  it   In  construing  statutes  giving  Knowler,  4  Pet.  152 ;  Chicago,  etc.  R. 

powers  that  are  to  be  applied  to  great  R.  Co.  v.  "Wiltse,  116  111.  449 ;  Chicago, 

public  objects,  depending  for  its  exer-  etc.  R  R  Co.  v.  Chicago,  121  IH  176 ; 

cise  upon  the  officers  inti-usted  with  lUinois  Cent.  R.  R  Co.  v.  Chicago,  etc 


496  STEICT    CONSTKUCTION". 

in  derogation  of  private  rights.  It  is  in  hostility  to  the  ordi- 
nary control  of  the  citizen  over  his  estate,  and  statutes  au- 
thorizing condemnation  are  not  to  be^  extended  by  inference 
or  imphcation.'  But  it  is  "a  right  existing  at  common  law, 
although  the  manner  in  which  it  shall  be  exercised  is  prescribed 
by  statute.  Therefore  it  has  been  held  that  the  same  rigid 
rules  ought  not  to  be  applied  to  statutory  regulations  for  the 
exercise  of  a  pre-existing  common-law  right  as  are  sometimes 
applied  to  similar  regulations  for  the  exercise  of  a  right  cre- 
ated by  statute,  and  in  derogation  of  the  common  law."* 
Upon  the  application  of  a  raih'oad  company  to  appropriate 
lands  by  the  exercise  of  the  right  of  eminent  domain,  delegated 
to  it,  it  is  for  the  court  to  decide  as  to  the  necessity  and  ex- 
tent of  such  appropriation,  and  the  determination  of  the  board 
of  directors  of  the  company  is  not  conclusive  upon  that  ques- 
tion.^ The  acquisition  of  lands  for  speculation  or  sale,  or  to 
prevent  interference  by  competing  lines  or  methods,  or  in  aid 
of  collateral  enterprises  remotely  connected  with  the  running 
or  operating  of  the  road,  although  they  may  increase  its  rev- 
enues and  business,  are  not  such  purposes  as  authorize  the  con- 
demnation of  private  property.^  Where  the  pubUc  use  for 
which  condemnation  is  authorized  contemplates  an  exclusive 
and  perpetual  possession,  the  condemnation  and  estimate  of 
compensation  must  be  equal  thereto ;  they  cannot  be  restricted 
to  a  less  use  or  estate.^  In  construing  acts  delegating  the 
power  to  corporations  two  rules  are  universally  recognized : 
first,  that  the  company  shall  take  that  which  the  legislature 
empowers  it  to  take,  and  in  the  state  and  condition  prescribed 
by  the  legislature ;  and  second,  that  all  powers  of  this  nature 
will  be  strictly  construed  —  what  is  not  expressly  given  is 
withheld.  The  company  cannot  carve  out  such  an  interest 
in,  or  incident  of,  property  authorized  to  be  taken  as  will  suit 
its  convenience  and  condemn  that.  It  must  take  what  the  legis- 
lature authorizes  it  to  take.^     Though  it  may  not  carve  out  a 

R.  R.  Co.  122  id.  473 ;  Fork  Ridge  Bap-  Minn.  227 ;  Tracy  v.  Elizabethtown, 

tist  Cemetery  Asso.  v.  Redd,  10  S.  E.  etc.  R.  R.  Co.  80  Ky.  259, 

Rep.  405.  4  Id.  See  Spring  Valley  "Wat  Works 

>  Rensselaer,  etc.  R.  R.  Co.  v.  Davis,  v.  San  Mateo  W,  Works,  64  CaL  123, 

43  N.  Y,  137,  146.  5  Matter  of  Water  Com'rs  of  Am- 

2  Avery  v.  Groton,  36  Conn.  304.  sterdam,  96  N.  Y.  351. 

'Id. ;  Re  St.  Paul  etc.  R'y  Co,  34  «De  Camp  v.  Hibernia  R.  R  Co,  47 


STKICT    C(,)NSrKL'CT10X.  497 

less  estate  than  that  authorized  to  be  condemned,  and  condemn 
it,  it  may  condemn  a  less  estate  which  actually  exists  and  is 
outstanding.^ 

§  388.  There  must  be  very  clear  expression  of  the  legisla- 
tive intent  to  authorize  the  taking,  by  the  exercise  of  the 
power  of  eminent  domain,  of  property  which  has  already  been 
devoted  to  a  public  use  by  an  earlier  exertion  of  the  same 
power.  Mr.  Mills  says :  "  To  take  property  abeady  appropriated 
to  another  public  use,  the  act  of  the  legislature  must  show  the 
intent  so  to  do  by  clear  and  express  terms,  or  by  necessary 
implication,  leaving  no  doubt  or  uncertainty  respecting  the  in- 
tent," ^  There  is  a  broad  distinction  between  acts  Avhich  sub- 
vert or  essentially  impair  a  prior  franchise  or  appropriation  to 
a  public  use  and  acts  which  permit  a  taking  for  a  new  public 
use,  not  involving  an  entire  deprivation  or  diversion  from 
the  first  use,  but  a  joint  use,  so  that  after  the  second  taking 
the  same  property  serves  still  the  original  purpose  as  w^ell  as 
the  new, —  and  the  tw^o  uses  are  consistent.  Under  a  general 
power  to  lay  out  and  establish  a  raiboad  or  highway,  other 
railroads  or  highways  may  be  crossed.  In  a  case  w^here  a 
railroad  company  sought  to  condemn  land  previously  appro- 
priated by  another  railroad,  used  merely  for  a  crossing,  and  it 
was  contended  that  an  express  statute  was  requu'cd,  the  court 
say :  "  The  right  which  is  claimed  is  merely  the  privilege  to  cross 
the  land  and  track  of  the  plaintiffs.  It  is  not  proposed  to  make 
any  use  of  their  raih-oad,  as  such.  Their  franchises,  therefore, 
are  not  interfered  wdth."  "  Under  these  circumstances,"  says 
Beasley,  C.  J.,  speaking  for  the  court,  "  I  am  wholly  at  a  loss 
to  perceive  the  force  of  the  present  objection.  If  the  legisla- 
tive grant  of  the  powder  in  question  is  sufficient  to  enable  the 
defendants  to  run  their  new  lines  over  the  lands  of  individ- 
uals, why  has  it  not  an  equal  efficacy  with  regard  to  the  land 
of  the  plaintiffs?  Does  an  incorporated  company  stand,  in 
this  respect,  on  a  higher  level  than  the  ordinary  land-owner? 
I  am  not  aware  that  such  a  prerogative  has  ever  been  claimed. 

N.  J.  L.  43,  50 ;  Hibemia  R  R.  Co.  v.  i  Hiberuia  R.  R.  Co.  v.  De  Camp, 
De  Camp,  id.   518,  547 ;   Jerome  v.    68  N.  Y.  167. 

Ross,  7  Jolin.  Ch.  315 ;  Lyon  v.  Je-        2  Mills  on  Eminent  Domain,  §  46. 
rome,  26  Wend.  485.     See  Re  Hart- 
ford, etc.  R.  R.  Co.  65  How.  Pr.  133. 
32 


49 S  STRICT   CONSTKUCTION. 

If  claimed,  it  ouglit  not  to  be  conceded.  It  may  weU  be  that^ 
where  the  attempt  is  to  sequester  a  portion  of  the  franchises 
of  a  railroad  company  to  the  use  of  a  company  subsequently 
incorporated,  such  sequestration  could  not  be  justified,  in  the 
absence  of  a  grant  of  such  authority  in  clear  and  express  terms. 
Such  a  right  could  scarcely  be  raised  by  imphcation.  It  cer- 
tainly could  not  be  inferred  from  a  mere  authority  to  acquire, 
by  condemnation,  the  land  requisite  for  the  enterprise."  ^  This 
distinction  is  clearly  recognized.  One  public  use  will  not  be 
permitted  to  be  subverted  or  materially  imj^aired  by  a  subse- 
quent grant,  unless  by  express  words  or  necessary  implication,* 
§  389.  An  instance  of  a  plain  implication  of  an  intent  to  in- 
vade a  prior  public  use  is  where  there  is  a  grant  to  build  a 
railroad  between  terminal  points  mentioned,  and  it  cannot 
reasonably  be  built  without  appropriating  land  already  de- 
voted to  public  use.^  In  determining  whether  a  power  gen- 
erally given  is  meant  to  have  operation  upon  lands  already 
devoted  by  legislative  authority  to  a  public  purpose,  it  is 
proper  to  consider  the  nature  of  the  prior  public  work,  the 
public  use  to  which  it  is  applied,  the  extent  to  which  that  use 

1  Morris  &  Essex  R,  E.  Co.  v.  Cen-  Portland,  9  Ore.  231 ;  Housatonic  R,  R. 
tral  R  R  Co.  31  N.  J.  L.  205,  213 ;  Co.  v.  Lee  &  H.  R  R  Co.  118  Mass.  391 : 
Boston  "Water  Power  Co.  v.  Boston,  Arundel  v.  McCulloch,  10  Mass.  70 ; 
etc.  R  R  Co.  23  Pick.  360;  Connect-  Worcester,  etc.  R  R  Co.  v.  R  R  Com'rs. 
lug  R'y  Co.  V.  Union  R'y  Co.  108  111.  118  id.  561,  567 ;  Commonwealth  v. 
265 ;  Cliicago,  etc.  R'y  Co.  v.  Chicago,  Stevens,  10  Pick.  247 ;  Commonwealth 
etc.  R  R.  Co.  112  id.  589 ;  Bradley  v.  v.  Coombs,  2  Mass.  489 ;  West  Bos- 
New  York,  etc.  R.  R.  Co.  21  Conn,  ton  Bridge  v.  County  Com'rs,  10  Pick. 
305 ;  Starr  v.  Camden,  etc.  R.  R  Co.  270 ;  Milwaukee,  etc.  R.  R.  Co.  v.  Fari- 
24  N.  J.  L.  592.  bault,  23  Minn.  167 ;  Hickok  v.  Hine, 

2  State,  National  R'y  Co.  pros.,  v.  23  Ohio  St.  523 ;  Central  City  Horse 
Easton,  etc.  R.  R  Co.  36  N.  J.  L.  181 ;  R'y  Co.  v.  Fort  Clark  Horse  R'y  Co. 
State,  Mayor,  etc.  Jersey  City,  pros.  81  HI.  523;  Charlestown  v.  County 
V.  Montclair  R'y  Co.  35  id.  328 ;  Spring-  Com'rs,  3  Met.  202 ;  WeUs  v.  County 
field  V.  Conn.  R  R  Co.  4  Cush.  63 ;  Com'rs,  79  Me.  522,  525 ;  Kean  v.  Stet- 
Morris,  etc.  R  R  Co.  v.  Newark,  10  son,  5  Pick.  492 ;  Marblehead  v. 
N.  J.  Eq.  352 ;  New  Jersey  Southern  Covmty  Com'rs,  5  Gray,  451 ;  Illinois 
R  R.  Co.  V.  Long  Branch  Com'rs,  39  Cent.  R.  R.  Co.  v.  Chicago,  etc.  R  R. 
N.  J.  L.  28, 33 ;  Matter  of  Boston,  etc.  Co.  122  IlL  473 ;  Matter  of  City  of 
R.  R.  Co.  53  N.  Y.  574 ;  Proprietors  of  Buffalo,  68  N.  Y.  167. 

Locks,  etc.  V.  Lowell,  7  Gray,  223 ;  3  Providence,  etc.  R  R  v.  Norwich, 

Baltimore,  etc.  Turnpike  Co.  v.  Union  etc.  R.  R  138  Mass.   277 ;  Matter  of 

R  R  Co.  35  Md.  224,  231 ;  Austin  v.  the  City  of  Buffalo,  68  N.  Y.  167. 
Carter,  1  Mass.  231 ;  Oregon  R'y  Co.  v. 


STltlCT   CONSTRUCTION.  499 

would  he  impaired  or  diminished  by  the  taking  of  such  part 
of  the  land  as  may  be  demanded  for  the  subsequent  use.  If 
both  uses  may  not  stand  together,  with  some  tolerable  inter- 
ference which  may  be  compensated  by  damages  jDaid ;  if  the 
latter  use,  when  exercised,  must  supersede  the  former,  it  is 
not  to  be  implied  from  a  general  power  given,  without  having 
in  view  a  then  existing  and  particular  need  therefor,  that  the 
legislature  meant  to  subject  lands  devoted  to  a  public  use,  al- 
ready in  exercise,  to  one  which  might  thereafter  arise.  A 
legislative  intent  that  there  should  be  such  an  effect  Avill  not 
be  inferred  from  a  gift  of  power  made  in  general  terms.  To 
defeat  the  attainment  of  an  important  public  purpose  to  which 
lands  have  already  been  subjected,  the  legislative  intent  must 
unequivocally  appear.  If  an  implication  is  to  be  relied  upon, 
it  must  appear  from  the  face  of  the  enactment,  or  from  the 
application  of  it  to  the  particular  subject-matter,  so  that  by 
reasonable  intendment  some  especial  object  sought  to  be  at- 
tained by  the  exercise  of  the  power  granted  could  not  be  reached 
in  any  other  place  or  manner.' 

§  390.  Statutes  granting  power.—  Statutes  which  impose 
burdens,  or  liabilities  unknown  at  common  law,  are  construed 
strictly  in  favor  of  those  on  whom  such  burdens  are  im- 
posed, or  in  favor  of  those  who  are  subjected  to  such  liabilities. 
The  principles  governing  construction  of  such  legislation  have 
been  considered  in  the  preceding  pages.  Power  is  generally 
given  to  some  officer  to  do  acts  for  the  enforcement  of  such 
duties ;  then  two  principles  concur  to  require  strict  construc- 
tion ;  the  second  is  that  which  applies  to  all  statutory  po^vers. 
They  are  construed  strictly.^  Where  a  statute  provides  that 
a  certain  person  shaU  execute  process,  it  can  be  executed  by 
no  other  person.*  "  When  a  rule  is  laid  down  for  the  govern- 
ment of  inferior  jurisdictions,  we  are  not  at  liberty  to  inquire 
whether  it  can  safely  be  departed  from ;  Avhether  the  mode 

1  Matter  of  the  City  of  Buffalo,  United  Telephone  Co.  L.  R.  13  Q.  B. 
68  N.  Y.  167.  Div.  904 ;  Rutherford  t.  Maynes,  97 

2  BlackweU  on  Tax  Titles,   33-49 ;  Pa.  St  78 ;  HoUenback  v.  Fleming,  6 
County  of  Hardin  v.  McFarlan,  82  111.  Hill,  303 ;  East  Union  Township  v. 
138 ;  Paine  v.  Spratley,  5  Kan.  525 ;  Ryan,  86  Pa.  St  459 ;  Indiana,  etc.  R"y 
People  V.  Supervisors,  6  Hvm,  304 ;  Co.  v.  Attica,  56  Ind.  476. 
AVandsworth   Board    of    Works    v.  3  Reynolds  v.  Orvis,  7  Cow.  269. 


500  STRICT   CONSTEUCTION. 

pursued  is  equally  beneficial  to  the  party  as  that  pointed  out 
by  the  statute.  The  answer  to  arguments  of  this  kind  is,  that 
the  law  has  prescribed  the  manner  in  which  the  person  .  .  . 
may  be  apprehended."  ^  Where  any  number  of  persons  are 
appointed  to  act  judicially  in  a  public  matter,  they  must  all 
confer ;  but  a  majority  may  decide.^  Power  of  sale  under  a 
mortgage  was  vested  in  two  commissioners ;  it  was  held  that 
it  could  not  be  exercised  by  one  —  discretion  had  to  be  used, 
and  it  could  not  be  delegated.^  In  levying  taxes  or  seUing 
property  for  the  non-pajauent  thereof,  the  assessor  and  col- 
lector act  under  a  special  and  limited  authority,  conferred 
by  statute,  and  it  must  be  strictly  construed  and  closely  fol- 
lowed.^ The  principle  of  strict  construction  as  applied  to  such 
statutes  is  well  illustrated  by  the  case  of  Sibley  v.  Smith,^  The 
court  held  that  the  principle  that  every  grant  of  power  car- 
ries with  it  the  usual  and  necessary  means  for  its  exercise, 
and  that  the  power  to  convey  is  imphed  in  the  authority  to 
sell,  cannot  be  admitted  in  the  construction  of  statutes  which 
are  in  derogation  of  the  common  law,  and  the  effect  of  which 
is  to  divest  the  citizen  of  his  real  estate.  Such  statutes,  al- 
though enacted  for  the  public  good,  must  be  strictly  construed. 
Their  provisions  can  be  enforced  no  further  than  they  are 
clearly  expressed." 

An  act  which  authorizes  a  municipal  body  to  open  and 
widen  streets  according  to  the  procedure  therein  prescribed, 

1  Reynolds  v.  Orvis,  7  Cow.  369.  Ann.  19 ;  Jackson  v.  Shepard,  7  Cow. 

2  Rogers,  Ex  parte,  7  Cow.  526  and  88 ;  Jackson,  etc.  R.  R.  Co.  v.  Davison, 
note ;  Downer  v.  Rugar,  21  Wend.  65  Mch.  416 ;  Brown  v.  Fowzer,  114 
178.  Pa.  St  446;    Russel  v.  Transylvania 

3  Powell  V  Tuttle,  3  N.  Y.  396.  University,  1  Wheat.  432 ;  Pensacola 

4  Davis  V.  Fames,  26  Tex.  296;  Fisk  v.  Louisville,  etc.  R.  R.  Co.  21  Fla. 
V.  Vamell,  39  id.  73 ;  Hays  v.  Hunt,  492 ;  Des  Moines  v.  Gilchrist,  67  Iowa, 
85  N.  C.  303 ;  Sharp  v.  Speir,  4  Hill,  210 ;  S.  C.  56  Am.  Rep.  341. 

76 ;  Williams  v.  Peyton,  4  Wheat.  77 ;  ^2  Mick  486. 

Sharp  V.  Jolinson,  4  HUl,  92 ;  Croxall  ^  Paine  v.  Spratley,   5  Kan.   525  ; 

V.  Shererd,   5  WaU.   268 ;  Jackson  v.  Vanliorne's     Lessee  v.   Dorrance,   2 

Cathn,  2  Jolin.  248 ;  S.  C.  3  Am.  Dec.  DalL  304 ;   Doe  v.  Chuun,  1  Blackf . 

415 ;  Commonwealth  v.  Roxbury,  9  336 ;  Doughty  v.  Hope,  1  N.  Y.  79 ; 

Gray,  451,  492-494;  Atkins  v.   Kin-  PoweU  v.  Tuttle,  3  N.  Y.  396 ;  Sti-iker 

nan,  20  Wend.  241 ;  Young  v.  Martin,  v.  Kelly,  7  Hill,  9 ;  S.  C.  2  Denio,  323. 
2  Yeates,  312 ;  Wills  v.  Auch,  8  La. 


STKICT   CON8TKUCTI0N.  501 

and  omits  to  prescribe  a  procedure  for  cases  of  widening 
streets,  is  to  that  extent  inoperative.'  A  power  to  the  free- 
holders to  make  prudential  rules  and  regulations  for  improv- 
ing their  common  lands  and  to  impose  penalties  on  offenders, 
does  not  authorize  them  to  prescribe  a  penalty  against  a  stran- 
ger for  trespass  on  such  lands.'^  Where  a  statute  provides  for 
a  summary  foreclosure  by  advertisement  of  mortgages  con- 
taining a  power  of  sale,  the  proceeding  is  special  and  statutory. 
The  statute  must  be  strictly  pursued ;  and  there  are  no  pre- 
sumptions or  intendments  in  favor  of  the  regularity  of  the 
proceedings.*  It  must  at  least  be  substantially  coni])lied  with.* 
Every  statutory  requirement  must  be  conformed  to ;  but  these 
sales  are  by  contract,  where  the  proceeding  is  authorized  by 
the  mortgagor  himself  to  save  expense  and  trouble  of  pro- 
ceedings in  equity.  Therefore  aU  provisions  regulating  such 
sales  must  be  reasonably  construed.'  When  the  legislature 
grants  power  to  a  township  to  make  donations  to  railroads 
and  to  issue  bonds  for  the  same,  the  grant  is  not  invalid  be- 
cause it  fails  to  provide  means  for  determining  the  amount 
and  terms  of  the  donation,  or  the  amount  of  the  bonds  to 
be  issued,  their  terms  and  manner  of  execution.  Such  con- 
struction should  be  put  on  a  statute  granting  a  power  as  may 
best  answer  the  intention  which  the  makers  had  in  view ;  and, 
if  possible,  it  should  be  so  construed  that  no  clause,  sentence 
or  word  shall  be  superfluous,  void  or  insignificant."  As  a  gen- 
eral rule,  where  power  is  granted,  it  implies  that  any  reason- 
able and  proper  means  may  be  employed  to  execute  it,  unless 
specific  du'ections  are  given.^  An  act  conferring  powers  re- 
cited in  a  former  act  is  to  be  construed  as  though  the  latter 
were  a  part  of  it.^  A  statute  granting  powers  and  referring 
to  anotlier  statute  for  their  definition  only  gives  the  general, 
and  not  tlie  ]xirticular,  powers  conferred  by  the  statute  re- 
ferred to.''    Where  specific  regulations  in  a  general  law  are 

1  Chaffee's  Appeal,  5G  IMicli.  244.  6  Niantic  Savings  Bank  v.  Douglas, 

2  Foster  v.  Rhoads,  19  Jolin.  191.  5  111.  App.  579. 

8  NUes  V.  Rausforcl,   1   Mch.   338,  i  Du  Page  County  v.  Jenks,  Go  IlL 

341.  275. 

*  Grover  v.  Fox,  36  Mich.  453,  466 ;  »  Tiiraey  v.  Wilton,  36  111.  385. 

Sherwoodv.ReadcTHill,  431;  Doyle  ^Ex   parte   Greene,    29    Ala.    52; 

V.  Howard,  16  Mich.  261.  Matthews  v.  Sands,  id.  186. 

8  Lee  V.  Clary,  38  ilich.  223. 


'502 


STRICT    CONSTKUCTION. 


adopted  in  a  local  act  by  words  of  general  reference,  subse- 
quent changes  therein  are  not  necessarily  adopted  also,  unless 
the  intent  to  do  so  is  clear.^ 

§  391.  Where  special  powers  are  conferred  on  a  court  either 
of  otherwise  general  or  limited  jurisdiction  it  is  rigorously  re- 
stricted to  those  granted,  and  the  grant  itself  is  strictly  con- 
strued :.'^  the  jurisdictional  facts  must  appear  on  the  face  of  the 
proceedings.^  The  court  can  take  no  additional  power  from 
its  general  jurisdiction.  In  the  exercise  of  such  special  pow- 
ers it  is  precisely  limited  to  those  plainly  delegated.  ]S^othing 
is  to  be  presumed  which  is  not  expressly  given.'' 

§  392.  A  statutory  remedy  or  proceeding  is  confined  to  the 
very  case  provided  for  and  extends  to  no  other.  It  cannot  be 
enlarged  by  construction,^  nor  be  made  available  or  valid  ex- 
cept on  the  statutory  conditions,  that  is,  by  strictly  follow- 
ing the  du'ections  of  the  act.*^ 

§  393.  A  party  seeking  the  benefit  of  such  a  statute  must 
bring  himself  strictly  not  only  within  the  spirit  but  its  letter ; 
he  can  take  nothing  by  intendment.'^    An  affidavit  for  an  at- 


1  Darmstaetter  v.  Moloney,  45  Mich. 
621. 

2  Matter  of  Beekman  Street,  20 
John.  269 ;  Wight  v.  Warner,  1  Doug. 
(Mich.)  384;  Risewick  v.  Davis,  19 
Md.  82;  Given  v.  Simpson,  5  Me. 
303 ;  Morse  v.  Presby,  25  N.  H.  302 ; 
Christie  v.  Unwin,  3  Perry  &  Davi- 
son, 208 ;  Buck  v.  Dowley,  16  Gray, 
555 ;  State  v.  Woodson,  41  Mo.  227. 

3  Thatcher  v.  Powell,  6  Wheat.  119 ; 
Kansas  City,  etc.  R.  R.  Co.  v,  Camp- 
bell, 62  Mo.  585 ;  Shivers  v.  Wilson, 
5  Har.  &  John.  130 ;  Beach  v.  Bots- 
ford,  1  Doug.  (Mich.)  199;  Clark  v. 
Holmes,  id.  390. 

*Geter  v.  Commissioners,  1  Bay, 
354 ;  Russell  v.  Wheeler,  Hempst.  3 ; 
Thatcher  v.  Powell,  6  Wheat.  119; 
People  V.  Whitney's  Point,  102  N.  Y. 
81 ;  Earthman  v.  Jones,  2  Yerg.  484 ; 
Shivers  v.  Wilson,  5  Har.  &  J. 
130;  Yerby  v.  Lackland,  6  id.  446; 
GaUatian  v.  Cunningham,  8  Cow. 
370;  Foot  v.  Stevens,  17  Wend.  488; 
Denning  v.  Cor  win,  11  Wend.  647; 


Piatt  V.  Stewart,  10  Mich.  260,  265 ; 
Stafford  v.  Mayor,  etc.  7  John.  541. 

5  Willard  v.  Frahck,  31  Mich.  431 ; 
Lombard  v.  Wliiting,  Walker  (Miss.), 
229 ;  Keller  v.  Corpus  Clu-isti,  50  Tex. 
614 ;  Dent  v.  Ross,  52  Miss.  188. 

6  Boyd  V.  Dowry,  53  Miss.  352: 
Scogius  V.  Perry,  46  Tex.  Ill ;  Rob- 
inson V.  Schmidt,  48  id.  13 ;  Bailey  v. 
Bryan,  3  Jones'  L.  357;  Walker  v. 
Bmt,  57  Ga.  20 ;  Banks  v.  Darden,  18 
id.  318 ;  Monk  v.  Jenkins,  2  HiU's  Ch. 
12;  Bloom  v.  Burdick,  1  Hill,  130; 
Staples  V.  Fox,  45  Miss.  667;  Rise- 
wick V.  Davis,  19  Md.  82;  Sliivers 
V,  Wilson,  5  Har.  &  J.  130 ;  Yerby 
V.  Lackland,  6  id.  446 ;  BaU  v.  Last- 
inger,  71  Ga.  678 ;  Weller  v.  Weyand,  2 
Grant's  Cas.  103 ;  Spence  v.  McGowan, 
53  Tex.  30 ;  Anness  v.  Providence,  13 
R.  L  17;  DibreU  v.  Daudridge,  51 
Miss.  55 ;  Lombard  v.  Wliiting,  Walk. 
(Miss.)  229 ;  Connell  v.  Lewis,  id.  251 ; 
Banks  v.  Cage,  1  How.  (Miss.)  293. 

7  Ball  V.  Lastinger,  71  Ga.  678.  See 
St.   Paul,  etc.   R'y  Co.  v.   Phelps,  26 


STRICT   CONSTRUCTION.  503 

tachment  which  failed  to  state,  as  the  statute  required,  that  the 
attachment  was  not  sued  out  for  the  purpose  of  injuring  the 
defendant,  was  held  fatally  defective.'  Ho  where  the  amount 
claimed  is  required  to  be  stated  to  be  "  due  upon  contract," 
the  omission  to  state  that  the  debt  is  due  is  fatal.-  Hence  if  the 
affidavit  is  sworn  to  on  a  previous  day,  stating  the  sum  due  or 
existence  of  cause,  like  absence  or  concealment  of  defendant, 
the  statute  is  not  complied  with.*  The  remedy  by  attachment 
is  special  and  extraordinary,  and  the  statutory  provisions  for 
it  must  be  strictly  construed  and  cannot  have  force  in  cases 
not  plainly  Avithin  their  terms.*  An  affidavit  that  the  defend- 
ant intends  to  abscond  is  not  a  compliance  with  the  require- 
ments of  the  provisions  of  a  statute,  commonly  called  the  stay 
law,  that  there  should  be  an  affidavit  that  the  defendant  was 
about  to  abscond.'  A  statute  permitting  a  second  suit  in  tres- 
pass to  try  title  will  be  strictly  construed.*^  Enactments  giv- 
ing a  remedy  for  judgment  by  motion  against  public  officers 
or  others,  this  being  a  summary  proceeding  in  derogation  of 
the  common  law,  must  be  taken  strictly.^  Such  acts  have  no 
latitude  of  construction.^ 

§  394.  Where  the  mode  of  taking  a  case  to  an  appellate 
court  is  prescribed  by  statute  the  same  rule  is  applied.^  Stat- 
utes authorizing  new  methods  of  proof  must  be  followed  with 
strictness.'"     All  exceptional  methods  of  obtaining  jurisdiction 

Fed.  Rep.  569;  Swann  v.  Jenkins,  83  5  Guilleaume  v.  Miller,  14  Eich.  118. 

Ala.  478.  See  Myers  v.  Farrell,  47  Miss.  281. 

1  Burch  V.  Watts,  37  Tex.  135.  eSpence  v.  McGowau,  53  Tex.  30, 

2  Cross  V.  McMackeu,  17  Mich.  511 ;  '  Hearn  v.  Ewin.  3  Cold.  399 ;  Wil- 
Wliitney  v.  Brunette,  15  Wis.  61 ;  lard  v.  Fralick,  31  Mich.  431 ;  Robm- 
Hawes  v.  Clement,  04  id.  153 ;  Sti'eiss-  sou  v.  Schmidt,  48  Tex.  13 ;  Bailey  v. 
gutli  %■.  Reigelniau,  71  id.  213.  Biyan,  3  Jones'  L.  357 ;  Banks  v.  Dar- 

3  Drew  V.  Dequindi-e,  2  Dougl.  den,  18  Ga.  318 ;  Scogins  v.  Perry,  46 
(Mich.)  93 ;  Wilson  v.  xVrnold,  5  Mich.  Tex.  111. 

98;  Fessenden  V.  Hill,  6  itL  242.    Com-  »  Rice  v.  Ku-kman,  3  Humph.  4ir). 

pare  Graham  v.  Bradbury,  7  Mo.  281 ;  9  Kramer  v.  Holster,  55  I^Iiss.  243 : 

Adams  v.  Lockwood.  30  Kan.  773;  Ricard  v.   Smith,   37    id.   644.      See 

Foster  v.  Illinski,  3  111.  App.  345.  Bank  of  Monroe  v.  Widner,  11  Paige, 

*  Van  Norman  v.  Circuit  Judge,  45  529 ;  Humphrey  v.  Chamberlain,  1 1 

Mich.  204 ;  Mathews  v.  Densmore,  43  N.  Y,  274, 

id.   461 ;    Morrison  v.   Fake,   1   Pin.  lo  Dyson  v.  West,  1  Har.  &  J.  567 ; 

OVis.)  133 ;  Whitney  v.  Brunette,   15  McWhorter  v.  Donald,  39  Miss.  779 ; 

Wis.  61.     But  see  Cole   v.  Aune,  40  Buford  v.  Bostick,  58  Tex.  63 ;  De- 

Mhan.  80.  quasei  v,  Harris,  16  W,  Va,  345. 


504  STKICT    CONSTRUCTION. 

bv  courts  over  persons,  natural  or  artificial,  not  found  within  the 
state,  must  be  confined  to  the  cases  and  be  exercised  in  the 
precise  way  indicated  by  statute.^  The  jurisdiction  and  au- 
thority in  such  cases,  like  all  jurisdiction  and  authority  derived 
from  and  dependent  upon  statute,  must  be  taken  and  accepted 
with  all  the  limitations  and  restrictions  the  act  creatiug  it 
may  impose.  These  restrictions  and  limitations  the  courts  are 
bound  to  observe ;  they  cannot  be  dispensed  with,  however 
much  they  may  appear  to  embarrass  or  however  unnecessary 
they  may  seem  to  be  in  the  administration  of  justice  in  partic- 
ular cases.  The  statute  is  in  derogation  of  the  common  law, 
is  an  essential  departure  from  the  form  and  modes  a  court  or- 
dinarily pursues,  and  must  be  strictly  construed.^ 

§  395.  Jurisdiction  of  courts. —  Jurisdiction  cannot  be  cre- 
ated nor  taken  away  by  implication,  except  where  the  impli- 
cation is  necessary  from  the  language  and  purpose  of  the 
statute.^  As  in  the  usual  distribution  of  the  fundamental  pow- 
ers of  the  government  to  separate  departments  —  legislative, 
executive  and  judicial  —  the  grant  to  each  is  exclusive,^  so  in 
the  distribution  of  the  judicial  power  of  the  state  to  certain 
named  courts  the  grant  is  exclusive  as  to  the  courts  men- 
tioned ^  and  as  to  the  powers  apportioned  to  each.^    Where 

1  Hartford  Fire  Ins.  Co.  v.  Owen,  30  vens,  28  Cal.  118 ;  Mecham  v.  McKay, 

:Micli.  441 ;  Jordan  v.  Giblin,  12  Cal.  87  Cal.  154. 

100;  Ricketson  v.  Richardson,  26  id.  ^Cooley,  Const.  Lim.  106,  107;  SiU 

149 ;  McMinn  v.  ^\Tielan,  27  id.  300 ;  v.  Village  of  Corning,  15  N.  Y.  297 ; 

Gray  v.  Larrimore,  2  Abb.  (U.  S.)  542 ;  Kilbourn    v.    Thompson,   103  U.   S. 

Sayre  v.  Elyton  Land  Co.  73  Ala.  85,  168 ;  People  v.  Draper,  15  N.  Y.  532, 

98,  99 ;  Brown  v.  Tucker,  7  Colo.  30 ;  543,  544. 

S.  C.  1  West  Coast  Rep.  489;  Pollard  -'^Greenough  v.  Greenough,  11  Pa. 

V.  Wegener,  13  Wis.  569 ;  Stewart  v.  St.  489 ;  State  v.  Maynard,  14  IlL  419 ; 

Sti-inger,  41  Mo.  400 ;  Scorpion  S.  M.  Smith  v.   Odell,   1   Pin.  (Wis.)   449 ; 

Co.  V.  Marsano,  10  Nev.  370 ;  Fontaine  Chandler  v.  Nash,  5  Mich.  409 ;  Gough 

Y.  Houston,  58  Ind.  316 ;  Bradley  v.  v.  Dorsey,  27  Wis.  119 ;  Alexander  v. 

Jamison,  46  Iowa,  68.  Bennett,   60  N.   Y.  204 ;    Hughes  v. 

-  Sayre  v,  Elyton  Land  Co.,  supra.  Felton,  11  Colo.  489.    See  Home  Ins. 

3  Keitler  v.  State,  4  Greene  (Iowa),  Co.  v.  Northwestern  Packet  Co.  32 

291 ;  School  Inspectors  v.  People,  20  Iowa,  223. 

IlL    525;    Prjngle  v.   Carter,   1   Hill  6  Van  Slyke  v.  Trempealeau,  etc. 

(S.  C),  53 ;  Thompson  v.  Cox,  8  Jones,  Ins.  Co.  39  Wis.  390 ;  Byrd  v.  Brown,  5 

(N.   C.)  L.    311 ;   Ryan  v.  Common-  Ark.  709 ;  Gough  v.  Dorsey,   supra; 

wealth,  80  Va.  385 ;  Beebe  v.  Scheldt,  Given  v.   Simpson,  5  Me.  303.    See 

13  Ohio  St  406.    See  Caulfield  \.  Ste-  People  v.  DanieU,  50  N.  Y.  274, 


STRICT   CONSTRUCTION.  505- 

common-law  and  chancery  jurisdiction  is  conferred  on  certain 
courts,  and  provision  is  made  in  the  same  act  for  a  probate 
court,  the  latter  will  not  receive  that  jurisdiction,  but  only  such 
as  is  implied  in  its  name  according  to  the  antecedent  and 
contemporary  judicial  history  of  the  subjects  cognizable  by 
courts  under  that  and  similar  designations.' 

§  396.  When  jurisdiction  is  once  granted  it  will  not  be 
deemed  taken  away  by  a  similar  jurisdiction  being  given  to 
another  tribunal.  In  Commonwealth  v.  Hudson  -  the  cpiestion 
was  whether  a  grant  of  a  certain  jurisdiction  to  justices  of  the 
peace  affected  that  previously  existing  in  the  court  of  common 
pleas  over  the  same  subject.  Shaw,  C.  J.,  said :  "  Before  this 
statute  the  court  of  common  pleas  had  jurisdiction  over  this 
subject-matter.  Is  that  jurisdiction  taken  away?  It  is  no  an- 
swer to  say  that  another  tribunal  has  jurisdiction;  for  that  is 
very  common.  It  is  in  such  case  concurrent  jurisdiction, 
whether  so  caUed  in  the  statute  or  not.  .  .  .  There  must 
be  words  of  limitation,  to  take  it  away,  either  by  using  the  word 
'  exclusive,'  or  by  repealing  the  former  act  giving  jurisdiction, 
by  which  it  may  appear  that  the  legislature  meant,  not  only 
to  confer  jurisdiction  on  justices  of  the  peace,  but  to  take 
away  the  other  jurisdiction."  *  Only  express  words,  or  what 
is  equivalent,  can  take  away  the  jurisdiction  of  the  superior 
comets.*  This  principle  ap})lies  not  only  to  a  court's  original, 
but  to  its  appellate,  jurisdiction,  and  its  customary  modes  of 
exercising  them.  In  Hartley  v.  Hooker  ^  Lord  Mansfield  said : 
"  If  a  new  offense  is  created  by  statute,  and  a  special  juris- 

1  Ferris  v.   Higley,   20  WaU.  375;  351;  In  re  Creighton,  12  Neb.  280; 

Robinson  v.  Fair,  128  U.  S.  53 ;  Zan-  Catlin  v.  \Mieeler,  49  Wis.  507. 

der  V.   Coe,   5  Cal.   230 ;  Appeal   of  "*  Rex  v.  Abbot,  2  Doug.  553,  note ; 

Houghton,  42  itl  35 ;  flatter  of  WiU  Gates  v.   Knight,  3  T.  R  442 ;  Ship- 

of  Bowen,  34  id.  683,  689;  Rosenberg  man  v.  Henbest,  4  id.  109;  Albon  v. 

V.  Frank,  58  id.  387,  402.  Pyke,  4  M.  &  Gr.  424 ;  Balfour  v.  :\IaI- 

2 11  Gray,  64.  colm,   8  CL   &  Fin.   500 ;    Jacobs  v. 

3  Tackett  v.  Volger,   85  Mo.  480 ;  Brett,  L.  R.  20  Eq.  6 ;  Rex  v.  Mayor 

Dick's  Appeal,  106  Pa.  St.  589 ;  Fidel-  of  London,  9  B.  «&  C.  at  p.  27 ;  In  re 

ity  Trust  Co.  v.  Gill  Car  Co.  25  Fed.  Twenty-eighth  St  102    Pa.  St  140 ; 

Rep.  737 ;  Barnawell  t.  ThreadgiU,  5  Crisp  v.  Bunbury,  8  Bing.  394 ;  Reeves 

Ired.  Eq.    86 ;    Berkowitz  v.  Lester,  v.  AVhite,  17  Q.  B.  995 ;  Richards  v. 

121  lU.  999;  Taylor  v.  WiUiams,  78  Dyke,  3  Q.  B.  256;  Timnis  v.  Will- 

Va.  422 ;   Hurth  v.  Bower,  30  Hun,  ianis,  id.  413. 

151;  Jenkins  v.  Crevier,  50  N.  J.  L.  5  2  Cowp.  523. 


50G  STKICT    CONSTRUCTION. 

diction  out  of  the  course  of  the  common  law  is  prescribed,  it 
must  be  followed.  If  not  strictly  pursued,  all  is  a  nullity, 
4ind  coram  non  judlcej  and  objections  may  be  taken  in  any 
stage  of  the  cause.  In  such  case  there  is  no  occasion  to  oust 
the  common-law  courts,  because  not  being  an  offense  at  com- 
mon law,  and  punishable  only  suh  Qnodo,  in  the  particular 
manner  prescribed,  they  never  could  have  jurisdiction.  But 
where  a  new  offense  is  created,  and  directed  to  be  tried  by  an 
inferior  court,  established  according  to  the  course  of  the  com- 
mon law,  such  inferior  court  tries  the  offense  as  a  common- 
law  court,  subject  to  be  removed  by  writs  of  error,  habeas 
corpus,  Gertiora?^,  and  to  all  the  consequences  of  common-law 
proceedings.  In  that  case  this  court  cannot  be  ousted  of  its 
jurisdiction  without  express  negative  words."  It  may  change 
the  venue.^  It  may  summon  or  complete  a  jury  when  the 
statutory  process  fails.- 

§  397.  The  jurisdiction  granted  by  the  constitution  cannot 
be  abridged  or  infringed  by  the  legislature,  territorially  *  nor 
as  to  subject-matter.*  If  it  is  defined  in  that  instrument  the 
legislature  can  neither  add  to  nor  diminish  it ;  neither  can  it 
invest  a  court  whose  original  jurisdiction  is  therein  defined 
with  additional  jurisdiction  of  that  nature,  nor  deprive  it  of  any 
part  of  its  apj^ellate  jurisdiction  so  conferred.'^  The  essential 
qualities  of  a  constitutional  court  are  indestructible  and  un- 
alterable by  the  legislature,^  though  it  may  regulate  the  man- 

1  Wilberf.  on  St.  44 ;  Southampton  14  Midi.  334 ;   CaUanan  v.  Judd,  23 

Bridge  Co.  v.  Local  Board  of  South-  Wis.    343 ;    Heath  v.    Kent    Circuit 

:anipton,  8  E.  &  B.  at  p.  804.  Judge,  37  IMich.  372 ;  Averill  v.  PeiTott, 

2Clawson    v.    United    States,    114  74  Mich.  296;  S.  C.  41  N.  W.  Rep.  929. 

U.  S.  477.  See  State  v.  Jones,  22  Ark.  331.  Wliere 

3  DUIard  v.  Noel,  2  Ark.  449 ;  Com-  an  act  gave  exclusive  jurisdiction  of 

monwealth  v.  Commissioners,  etc.  37  aU  misdemeanors  to  the  county  com't 

Pa.  St.  237 ;  Meyer  v.   Kalkmann,  6  of  Knox  county,  it  was  held  not  to 

Cal.  582 ;  Landei's  v.  Staten  Island  R.  repeal  an  existing  statutory  provision 

R.  Co.  14  Abb.  Pr.  (N.  S.)  346 ;  Con-  authorizing  the  circuit  court  to  pun- 

nors  V.  Gorey,  32  Wis.  518.  ish  when  the  defendant  was  acqmtted 

*  Hicks  V.  Bell,  3  Cal.  219 ;  Parsons  of  a  felonious  charge  and  convicted 

V.   Tuolumne  Co.   W.  Co.  5  id.  43 ;  of  a  misdemeanor.     Carter  v.  State, 

State  V.  Mace,  5  Md.  337 ;  Chandler  v.  6  Cold.  537. 
Nash,  5  Jlich.  409 ;  Waldby  v.  Callen-        5  Vail  v.  Dinnmg,  44  Mo.  210. 
■dar,  8  id.  430 ;   State  v.  Northern,  etc.        ^  Harris  v.  Vanderveer,  21  N.  J.  Eq. 

R'y  Co.  18  Md.  193 ;  Jones  v.  Smith,  424. 


STKICT    C.)>;6TULCTION.  507 

ner  in  which  it  shall  be  put  in  action ;  •  as  by  prescribing  when 
appellate  jurisdiction  shall  be  exercised  on  appeal  and  when 
on  writ  of  error.-  When  exclusive,  revising  or  appellate  juris- 
diction is  given  by  the  constitution  to  the  supreme  court  of  a 
state,  a  statute  cannot  authorize  a  trial  court  to  revise  its  own 
judgments  at  a  term  subsc(|uent  to  that  at  which  they  were 
rendered,^  In  other  words,  the  legislature  cannot  give  appel- 
late jurisdiction  to  any  other  court/ 

§  398.  Statutory  rights. —  Such  rights  depend  on  the  stat- 
utes creating  them,  and  these  are  construed  strictly.'  This 
principle  is  illustrated  by  the  cases  brought  to  enforce  the 
statutory  right  in  favor  of  the  Vidow  or  next  of  kin  to  re- 
€Over  damages  resulting  from  the  death  of  a  person  caused 
by  negligence."  Statutes  made  for  the  accommodation  of  par- 
ticular citizens  or  corporations  ought  not  to  be  construed  to 
affect  the  rights  or  privileges  of  others  unless  such  construc- 
tion results  from  express  words  or  from  necessary  imphca- 
tion.  But  every  part  of  a  statute  must  have  a  reasonable 
effect.'^  Statutes  authorizing  persons  to  prosecute  in  forma 
jpauperis  should  be  construed  strictly  as  against  the  appUcant.^ 
A  statute  gave  a  right  to  detain  trespassing  animals  until 
seventy-five  cents  per  day  should  be  paid  for  their  keeping, 
when  the}^  had  trespassed  upon  the  inclosure  of  a  party  by 
breaking  through  a  lawful  fence ;  this  right  being  statutory 
was  held  stricti  juris;  the  injured  party  could  avail  himself 
of  it  only  on  the  precise  statutory  condition  that  the  ani- 
mals had  broken  through  such  a  fence.*  An  act  authorizing 
gratuitous  credits  to  be  made  on  a  debt  owing  to  the  state 
must  be  restricted  to  its  obvious  and  plain  intent  and  be  con- 
strued most  favorably,  in  case  of  doubt,  for  the  government.'" 

iHornbuckle  V.  Toombs,   18  Wall,  Dyson  v.  Sheley,  11  id.  527;  Walker 

648.    See  Ex  parte  Candee,  48  Ala.  v.  Chicago,  56  111.  277 ;  Itawamba  v. 

386,  Candler,  63  Miss.  193. 

2  Haight  V.  Gay,  8  CaL  297.  «  Ante,  §  371. 

3  BjTd  V.  Brown,  5  Ark.  709.  '  Coolidge  v.  Williams,  4  Mass.  140, 

4  Caulfield  v.  Hudson,  3  Cal.  389 ;  145  ;  Rothgerber  v.  Dupuy,  64  III  452 ; 
People  V.  Peralta,  id.  379 ;  Deck  v.  Scaggs  v.  Baltimore,  etc.  R.  R.  Co.  10 
Gherk'e,  6  id.  666.  Md.  268. 

5  PeU  V.  Ulmar,  18  N.  Y.  139 ;  Van  «  IMoore  t.  Cooley,  2  Hill,  412. 
Valkenburgh  v.  Torrey,  7  Cow.  252 ;  «  Dent  v.  Ross,  52  Mis?.  18S. 
Hollister  v.  HoUister  Bank,  2  Keyes,  '« Green's  Estate,  4  Md.  Cbu  349. 
245 ;  Beecher  v.  Baldy,  7   ]\Iich.  488 ; 


50S  STRICT    CONSTKUCTION. 

The  mechanics'  lien  law  confers  special  privileges  and  rights 
upon  one  class  of  people  not  enjoyed  by  others;  therefore 
courts  in  construing  such  statutes  confine  them  to  their  ex- 
press letter,  and  require  that  the  case  shall  be  brought  clearly 
within  them  before  relief  will  be  granted.  Such  laws  are 
not  extended  by  liberal  construction  to  embrace  cases  not 
within  their  language.^  A  statute  which  gives  a  judgment 
creditor  a  right  to  have  a  sheriff  who  is  delinquent  in  re- 
turning an  execution  amerced  for  his  use,  on  motion,  in  the 
amount  of  the  debt,  damage  and  costs,  must  be  strictly  con- 
strued, lie  who  would  avail  himself  of  such  a  summary 
remedy  must  bring  himself  within  both  the  letter  and  spirit 
of  the  laAv.-  And  where  such  a  statute  provides  that  if  he  is 
thus  required  to  pay  a  judgment  it  shall  vest  in  him  and  exe- 
cution may  issue  for  his  use,  he  must  bring  himself  strictly 
within  the  terms  of  the  act  by  payment  of  the  judgment.* 
A  statute  authorizing  the  destruction  of  property  to  prevent 
the  spread  of  fire  provided  a  remedy  for  compensation  to  the 
owner.  It  was  held  that  the  remedy  could  only  be  asserted 
in  the  manner  defined  therein.*  So  where  a  remedy  is  given 
in  the  charter  of  a  company  to  the  land-owner  for  getting 
compensation  for  land  taken  for  the  use  of  the  corporation 
under  its  charter,  he  must  pursue  this  remedy,  as  that  given 
thereby  is  exclusive  of  all  others.^ 

1  Roberts  v.  Fowler,  3  E,  D.  Smith,  v.  Herr,  98  Pa.  St.  6 ;  MarJy  v.  Down- 

633 ;  Eotligerber  v.  Dupuy,  64  111.  452 ;  ing,  15  Neb.  637 ;  Johnson  v.  Stout, 

Chapin  v.  Persse  &  Brooks    Paper  42  ]\Iinn.  514. 

Works,  30  Conn.  461,  474 ;  Womels-  2  Moore  v.  McChef,  16  Oliio  St  51, 

dorf  V.  Heifner,  104  Pa.  St.  1 ;  Scaife  54 ;  Duncan  v.  Drakeley.  10  Oliio,  47 ; 

V.   Stovall,   67   Ala.   237;  Wagar  v.  Bank  of  GallipoUs  v.  Domigan,  12 

Briscoe,  38  Mich.  587.  Statutes  which  Oliio,  220 ;  Webb  v.  Anspach,  3  Ohio 

give  a  lien  for  services  upon  logs  and  St  522 ;  Conkling  v.  Parker,  10  id.  28 ; 

timber  are  constnied  Uberally  ha  the  Langdon  v.  Smnmers,  id  79 ;  Dibrell 

interest  of  labor.     Jacubeck  v.  Hew-  v.  Dandridge,  51  Miss.  55. 

itt,  61  Wis.  96 ;  KoUock.  v.  Parcher,  3  staple  v.  Fox,  45  Miss.  667. 

25  id.  372 ;  Hogan  v.  Cusliing,  49  id.  *  KeUer  v.  Corpus  Christi,  50  Tex. 

169.    See,  as  to  the  rule  of  consti-uc-  614. 

tion  appUed  to  statutes  giving  a  rem-  5  Railroad  v.  McKaskill,  94  N.  C. 

edy  for  enforcmg  mechanics'  hens,  746 ;  Mclntu-e  v.  Western  N.  C.  R.  R. 

Rude  V.  MitcheU,   97  Mo.  365,  criti-  Co.  67  N.  C.  278 ;  Jolmston  v.  Rankm, 

cised  in  24  Am.  L.  Rev.  857 ;  Thomas  70  N.  C.  550. 
V.  Huesman,  10  Ohio  St  152 ;  Keemer 


STRICT   CONSTRUCTION.  509 

§  399.  When  a  right  is  given  by  statute  and  a  specific  rem- 
edy provided,  or  a  new  power  and  also  the  means  of  execut- 
ing it  are  therein  granted,  the  power  can  be  executed  and 
the  right  vindicated  in  no  other  way  than  that  prescribed  by 
the  act.^  This  rule  does  not  conflict  with  the  general  rule 
that  the  jurisdiction  of  a  court  is  not  impaired  by  statutes  con- 
ferring upon  other  tribunals  jurisdiction  of  the  same  kind  and 
to  reach  the  same  redress,  unless  the  statutes  expressly  take 
away  the  former  jurisdiction ;  ^  nor  with  the  other  well-settled 
rule,  that  if  a  statute  gives  a  remedy  in  the  affirmative  without 
a  negative,  express  or  implied,  for  a  matter  which  was  action- 
able at  common  law,  the  party  may  sue  at  the  common  law  as 
well  as  upon  the  statute ;  for  this  does  not  take  away  the  com- 
mon-law remedy.*  In  the  cases  to  which  these  rales  are  ap- 
plied the  right  existed,  and  its  enforcement  lay  within  the 
appropriate  existing  jurisdiction.  Statutes  affirmative  of  the 
right,  and  prescribing  other  than  the  usual  remedies  for  its 
enforcement,  or  conferring  cognizance  of  it  upon  other  tribu- 
nals, not  negativing  the  pre-existing  remedies  or  jurisdiction, 
in  their  very  nature  are  merely  cumulative,  and  not  exclusive. 
But  when  a  right  is  solely  and  exclusively  of  legislative  crea- 
tion, when  it  does  not  derive  existence  from  the  common  law 
or  from  the  principles  of  equity,  jurisdiction  may  be  limited 
to  particular  tribunals,  and  new  specific  remedies  provided  for 
its  enforcement.  Then  the  jurisdiction  can  be  exercised  and 
the  remedy  pursued  only  as  the  statute  provides.^  Where  a 
statute  gives  a  new  remedy  for  a  right  existing  and  enforcible 
either  at  common  law  or  in  equity,  and  contains  no  negative, 
express  or  implied,  of  the  old  remedy,  the  new  one  provided 
by  it  is  cumulative,  and  the  party  may  elect  between  the 
two.*     If  a  new  right  is  created  by  statute  and  it  is  silent 

1  Sedgw.   on  Stat.  &  Const  Law,  *  Chandler  v.  Hauna.  siqn^a;  Dud- 

^43 ;  Janney  v.  Buell,  55  Ala.  408 ;  ley  v.  May  hew,  3  N.  Y.  9 ;  Dickinson 

Phillips  V.  Ash,  63  id.  414 ;  Chandler  v.  Van  Wormer,  39  Mich.  141 ;  Matter 

V.  Hanna,  73  id.  390 ;  Dutlley  v.  May-  of  Opening  House  Ave.  G7  Barb.  350. 

hew,  3  N.  Y.  9 ;  HoUister  v.  Hollister  5  Branch  Bank  v,  Tillman,  12  Ala. 

Bank,  2  Keyes,  245.  214 ;  Greenville,  etc.  R.  R.  Co.  v.  Catli- 

'^  Id. ;  Gittings  v.  Crawford,  Taney's  cart,  4  Ricli.  89 ;  Stafford  v.  Ingersol, 

Dec.  1.  3  Hill,  38 ;  Clark  v.  Brown,  18  Wend. 

»Almy    V.   Harris,    5    John.    175;  213;  Colden  v.  Eldred,  15  Jolui.  220; 

Sedgw.  on  Stat.  &  Const.  L.  342.  Scidiuore  v.  Smith,  13  id.  322 ;  Thou- 


510 


STRICT    CONSTKTJCTION. 


as  to  the  mode  of  its  enforcement,  or  as  to  the  form  of  re- 
dress in  case  of  invasion,  then  the  proprietor  of  that  right  may 
resort  to  the  common  laAV  or  the  existing  general  statutory 
procedure  for  remedial  process.^  In  the  absence  of  statutory 
regulations  of  procedure  courts  will  exercise  their  powers  ac- 
cording to  the  general  practice.^  When  a  statute  refers  gen- 
erally to  powers  to  enforce  obedience,  and  does  not  prescribe 
any  procedure,  the  powers  generally  referred  to  would  be  those 
of  the  court  in  which  the  proceedings  are  pending.^ 

§  400.  Statutes  in  derogation  of  the  common  law.—  Such 
statutes  as  take  away  a  common-law  right,  remove  or  add  to 
common-law  disabilities,  or  provide  for  proceedings  unknown 
or  contrary  to  that  law,  are  construed  strictly.  The  courts 
cannot  properly  give  force  to  them  beyond  what  is  expressed 
bv  their  words,  or  is  necessarily  implied  from  what  is  ex- 
pressed."    There  should  doubtless  be  the  same  strictness  of 


venin  v.  Eodrigues,  24  Tex.  468 ;  Troy, 
etc.  R.  R  Co.  V,  Tibbits,  18  Barb.  297 ; 
Remvick  v.  Morris,  3  HiU,  621 ;  S.  C. 
7  id.  575 ;  Smith  v.  Drew,  5  Mass.  514 ; 
Waldo  V.  Bell,  13  La.  Ann.  329 ;  Mitch- 
ell V.  Duncan,  7  Fla.  13;  Booker  v. 
SIcRoberts,  1  CaU,  243. 

1  Ewer  V.  Jones,  2  Salk.  415 ;  Beck- 
ford  V.  Hood,  7  T.  R.  620 ;  Donaldson 
V.  Beckett,  2  Bro.  P.  C.  129 ;  Dudley  v. 
Mayhew,  3  N.  Y.  9 ;  Jacob  v.  United 
States,  1  Brock.  520 ;  Branch  Bank  v. 
Tilhnan,  12  Ala.  214 ;  Lynes  v.  State, 
5  Port.  236 ;  United  States  v.  WyngaU, 
5  HiU,  16 ;  Constantine  v.  Van  Win- 
kle, 6  id.  177 ;  Leland  v.  Tousey,  id 
328 ;  Burnham  v.  Onderdonk,  41  N.  Y. 
425;  Alma  v.  Harris,  5  John.  175; 
Cliisholm  V.  Northern  Transportation 
Co.  61  Barb.  363 ;  RusseU  v.  Irby,  13 
Ala.  131. 

2  Lynes  t.  State,  5  Port.  236. 

3  Green  v.  Lord  Penzance,  L.  R.  6 
App.  Cas.  675. 

4  Smith  V.  Argall,  6  Hill,  479 ;  Burn- 
ham  V.  Sumner,  50  Miss.  517 ;  Hop- 
kins V.  Sandidge,  31  id.  668 ;  Doughty 
V.  Hope,  3  Denio,  594 ;  McMechen  v. 
McMechen,  17  W.  Va.  683;  Monson 


V.  Chester,  22  Pick.  385;  Scott  v. 
Simons,  70  Ala.  852;  Fisher  v.  Bid- 
weU,  27  Conn.  363;  Matter  of  Fitz- 
gerald, 2  Cai.  318;  Dewey  v.  Good- 
enough,  56  Barb.  54 ;  Baum  v.  MuUen,. 
47  N.  Y.  577 ;  McManus  v.  Gavin,  77 
id.  36;  People  v.  Hadden,  3  Denio, 
220 ;  Thompson  v.  Weller,  85  111.  197 : 
Corwm  V.  Merritt,  3  Barb.  341 ;  Ed- 
wards V.  Gaulding,  38  Miss.  118 ;  Peo- 
ple V.  Hulse,  3  HiE,  309;  Tuttle  t. 
Walton,  1  Ga.  51.  A  statute  of  Ala- 
bama provides :  "A  seal  is  not  neces- 
sary to  convey  the  legal  title  to  land 
to  enable  the  grantee  to  sue  at  law. 
And  any  instrument  in  wi-iting  signed 
by  the  grantor,  or  his  agent  having 
written  authority,  is  effectual  to 
transfer  the  legal  title  to  the  gi-antee. 
if  such  was  the  intention  of  the 
grantor  to  be  collected  from  the  en- 
tire instnmient."  In  Webb  v.  Mid- 
hns,  78  Ala.  Ill,  it  was  decided  that 
this  statute  is  remedial  and  to  be  hb- 
eraUy  consti-ued,  "  so  far  as  may  be 
necessary  to  suppress  the  mischief, 
and  effectuate  the  purpose  and  intent 
of  the  law-maker ;  but  being  in  mod- 
ification of  the  common  law  it  will  not 


STKICT    CONSTKLXTIOX.  511 

construction  of  a  statute  in  derogation  of  an  enforceable 
equity.'  Statutes  are  not  to  be  construed  as  taking  away  a. 
common-law  right  unless  the  intention  is  manifest.  Accord- 
ingly where  a  particular  defense  is  denied  in  case  of  rescous, 
but  to  render  it  available  to  a  plaintiff  the  precise  action  men- 
tioned in  the  statute  must  have  been  brought,  the  deprivation 
of  that  defense  will  not  be  enforced  by  an  equitable  construc- 
tion in  another  form  of  action.^  Statutes  which  make  an  offi- 
cial deed  or  certificate  evidence  in  derogation  of  the  common 
law  will  be  confined  in  their  operation  to  the  cases  and  the 
conditions  expressly  stated  in  them.^ 

"At  common  law  a  party  could  not  be  a  witness  for  him- 
self, to  prove  any  part  of  the  issue,  and  the  statute  authorizing 
it  is  not  to  be  extended  in  his  behalf  beyond  what  it  clearly 
imports."  ■*  Statutes  which  innovate  upon  the  common  law, 
rules  of  evidence  or  competency  of  witnesses  must  be  strictly 
construed.^  Such  innovating  statutes  may  be  remedial,  and 
then  they  must,  except  as  antagonized  by  other  rules  of  con- 
struction, be  hberally  construed.®  Statutes  which  are  claimed 
to  aboUsh  any  of  the  incidents  of  marriage  Avill  be  strictly  con- 
strued.''   Statutes  increasing  the  power  of  married  women  over 

be  presumed  to  modify  it  farther  than  Hill,  466;  Sharp  v.  Speir,  4  id.  76; 
is  expressly  declared ;  and  construe-  McWliorter  v.  Donald,  39  IVIiss.  779. 
tion  or  intendment  will  not  be  re-  ■*  Dewey  v.  Goodenough,  56  Barb.  54. 
sorted  to  for  the  purpose  of  extending  o  Smith  v.  Eandall,  3  Hill,  495 ; 
its  operation."  It  was  accordingly  Dequaisie  v.  Hams,  16  W.  Va.  345 ; 
held  tliat  an  insti'ument  of  writing  in  Dyson  v.  West,  1  Har.  &  J.  567 ; 
the  form  of  a  deed  under  seal,  signed,  Warner  v.  Fowler,  8  Md,  25.  See 
attested  and  acknowledged,  but  con-  Cummins  v.  Garretson,  15  Ark.  185. 
taining  no  words  of  gTant  or  transfer,  6  Post,  §§  416, 434. 
could  not  operate  as  a  conveyance,  TNeelly  v.  Lancaster,  47  Ark.  175; 
though  a  regular  habendum  clause  S.  C.  1  South.  Rej).  66 ;  Harker  v,  Har- 
was  inserted  —  "to  have  and  to  hold  ker,  3  Harr.  51 ;  Glover  v.  Alcott,  11 
to  the  said  J.  K  B,,  liis  heirs  and  as-  Mich.  470 ;  Thomson  v.  WeUer,  85  111. 
signs  forever."  A  statute  legitimat-  197 ;  Hays  v.  Hays,  5  Rich.  31.  In  con- 
ing bastards  should  be  hberally  con-  sti'uing  the  married  woman's  act,  says 
strued.     Beall  v.  Beall,  8  Ga,  210.  the  liigh  court  of  errors  and  appeals  of 

1  Baker  v.  Terrell,  8  Minn.  195.  Mississippi,  we  must  look  to  the  true 

2  Gray  v.  Nations,  1  Ark.  557;  Mel-  spirit  and  object  of  the  statute  and  con- 
ody  v.  Reab,  4  Mass.  471 ;  Jacob  v.  strue  its  language  with  reference  to 
United  States,  1  Brock.  520.  the  pohcy  indicated  by  it.    Before  the 

8  Doughty  v.  Hope,  3  Denio,  594 ;  passage  of  the  act,  a  niaiTied  woman 
S.  C.  1  N.  Y.  79 ;  Graves  v.  Otis,  2    was  incapable  of  holding  to  her  sepa- 


512 


STRICT    CONSTKUCTION, 


their  separate  property,  being  in  derogation  of  tlie  rights  of 
the  husband  and  of  the  common  law,  are  to  be  construed 
strictly.^  They  have  not  been  interpreted  to  enlarge  the  capac- 
ity of  the  wife  to  contract,  to  hold  or  administer  property,  fur- 
ther than  the  words,  fairly  and  reasonably  construed  accord- 
ing to  their  natural  import,  expressly  declare.^  They  are  re- 
garded as  remedial  in  Michigan,  and  to  be  liberally  construed  to 
etf  ectuate  their  general  purpose.  The  disabiUties  are  removed 
only  so  far  as  they  operate  unjustly  and  oppressively ;  beyond 
that  they  are  suffered  to  remain.  Having  been  removed  with 
the  beneficent  design  to  protect  the  wife  in  the  enjoyment 
and  disposal  of  her  property  for  the  benefit  of  herself  and 
family,  the  statutes  cannot  be  extended  by  construction  to  cases 
not  embraced  by  their  language  nor  within  this  design.^  A 
statute  provided  that  when  a  testator  devised  lands  to  his  wife 
without  declaring  such  devise  to  be  in  lieu  of  dower,  it  shall 
nevertheless  so  operate,  and  required  her  to  make  her  election 


rate  use  property  conveyed  directly 
to  her  in  her  own  name.  Tlie  primary 
object  of  the  statute  was  doubtless  to 
remove  that  incapacity  and  to  secru-e 
to  her  separate  use  all  property  which 
she  might  acquire  except  the  same 
should  come  from  her  husband ;  and 
hence  provision,  in  the  first  place,  is 
made  enabling  her  to  take  by  direct 
conveyance  to  her.  But  tliis  is  only 
a  mode  of  accomplishing  the  end  in- 
tended, the  policy  being  to  secure  to 
the  wife  a  complete  title  to  all  such 
jjroperty  as  might  be  acquired  by  her 
to  her  sole,  separate  use  for  the  bene- 
fit of  herself  and  her  children.  This 
was  a  new  policy  in  our  laws,  f  oimded 
upon  enlarged  views  of  protection 
and  justice  to  tlie  rights  of  a  class  of 
society  entitled  to  the  most  hberal 
protection.  It  was  a  substantial 
right  which  the  legislature  intended 
to  secure,  rather  than  to  prescribe  the 
foi-m  necessary  to  be  complied  with 
in  order  to  the  enjoyuient  of  the  right ; 
and,  therefore,  the  spirit  of  the  statute 
is  to  secure  to  the  benefit  of  the  wife 


and  her  cliildren  all  property  which 
may  thereafter  be  conveyed  to  her 
separate  use  and  benefit  without 
regard  to  the  form  of  the  conveyance. 
Ohve  V.  Walton,  33  IMiss.  103. 

1  Compton  V.  Pierson,  28  N.  J.  Eq. 
229. 

2  Cook  V.  Meyer,  78  Ala.  580,  583; 
Gibson  v.  Marquis,  29  Ala.  668 ;  Canty 
V.  Sanderford,  37  id.  91 ;  Alexander  v. 
Saulsbury,  id.  875 ;  Warfield  v.  Eava- 
sies,  38  id.  518 ;  Reel  v.  OveraU,  39  id. 
188;  Hatton  v.  Wier,  19  id.  127; 
Ferryman  v.  Greer,  39  id.  133 ;  Cun- 
ningham V.  Hanney,  12  111.  App.  437 ; 
Ti-iplett  V.  Graham,  58  Iowa,  185; 
Pettit  V.  Fretz,  33  Pa.  St.  118 ;  Morgan 
V.  BoUes,  86  Conn.  175;  Quick  v. 
Miller,  108  Pa.  St.  67;  Weber  v. 
Weber,  47  Midi.  569 ;  Longey  v.  Leach, 
57  Vt.  877 ;  Dorris  v.  Erwin,  101  Pa. 
St.  289 ;  Reynolds  v,  Robinson,  64  N. 
Y.  589.  See  contra,  BiUings  v.  Baker, 
28  Barb.  348 ;  Goss  v.  CaliiU,  42  id. 
310. 

s  De  Vries  v.  Conklin,  22  Mich.  255. 


STKICT    CUNSTULCTION.  513 

between  them.  That  statute  was  designed  as  a  rule  of  con- 
struction of  wills,  and  to  determine  the  intention  of  the  testar 
tor  where  he  has  not  expressed  it.  Being  in  derogation  of 
the  common-law  rights  of  the  widow  it  should  Ije  construed 
liberally  as  regards  her.  Had  the  testator  declared  this  devise 
to  be  in  lieu  of  dower,  she  would  still  have  been  entitled  to  her 
election.  Should  she  elect  to  take  the  devise,  and  it  wholly 
fails  on  account  of  a  defect  of  title,  of  which  she  was  ignorant, 
she  could  stiU  claun  doAver.^  A  statute  requiring  certain  liens 
to  be  registered  cannot  be  extended  to  other  liens  than  those 
specified.-  The  common-law  rights  of  the  subject  m  respect 
to  the  enjoyment  of  his  property  are  not  to  be  trenched  upon 
by  a  statute,  unless  such  intention  is  shown  by  clear  words 
or  necessary  implication.'  A  statute  to  compel  a  party  to  give 
evidence  against  himself  will  be  construed  strictly.^  So  an 
act  which  takes  away  a  remedy  given  by  the  common  law 
ought  never  to  have  an  equitable  construction.^ 

§  401.  Statutes  not  remedial,  which  are  in  derogation  of  the 
common  law  of  England,  brought  over  by  the  colonists,  so  far 
as  apphcable  to  the  new  circumstances  and  conditions  of  the 
people  and  the  country,  and  so  far  as  not  changed  by  legis- 
lation, are  the  law  of  the  states  generally;  and  courts  will 
construe  strictly  aU  acts  in  modification  or  derogation  thereof, 
assuming  that  the  legislature  has,  in  the  terms  used,  expressed 
all  the  change  it  intended  to  make  in  the  old  law,  and  will 
not  by  construction  or  intendment  enlarge  their  operation.^  A 
statute  preventing  a  concurrent  action  for  the  recovery  of 
the  mortgage  debt,  pending  a  foreclosure  suit,  is  in  dero- 
gation of  the  common  law,  and  therefore  to  be  strictly  con- 
strued.^ In  construing  statutes  which  are  not  penal  nor  liable 
to  be  used  oppressively,  the  court  will  not  stop  at  the  lit- 
eral terms  nor  stand  upon  form  and  cu'cumstance,  but  wi]] 

1  Tliompson  v.  Egbert,   17  N.  J.  L.  son  t.  Arnold,  5  Mich.  98 ;  Fessendi'n 

459,  466.  V.  Hill,  6  id.  242 ;  GaJpin  v.  Abbott. 

2TuttIe  V.  Walton,  1  Ga.  51.  id.  17;  Lee  v.  Forman,  3  Met  (Ky.) 

3 Reg.  V.  MaUow  Union,  12  Ir.  C.  L.  114;  Brovna  v.  Fifield,  4  Mich.  3;;2: 

(N.  S.)  35.  Jackson    v.    Cairns,    20    Jolm.  301 ; 

^  Bioadbent  v.  State.  7  Md.  416.  Pendleton  v.  Bank  of  Kentucky,  2 

^  Hammond  v.  Webb.  10  Mod.  281.  J.  J.  :\Iarsh.  148. 

6  HoUman  v.  Bennett.  44  :\Iiss.  322 ;  '  Hays  v.  Miller,  1  Wash.  T"y,  143. 
Thompson  v.  WeUer,  85  ILL  197  ;  Wil- 
33 


514  STRICT   CONSTKUCTIOW. 

go  to  the  effect  and  substance  of  the  matter.  Thus,  where  a 
law  which  provided  a  mode  of  submitting  a  cause  to  arbi- 
tration required  that  each  party  should  choose  one  arbitrator, 
and  if  the  arbitrators  thus  chosen  failed  to  agree  an  umpire 
should  be  chosen  by  them,  and  it  was  objected  that  the  award 
was  not  a  good  statutory  award,  on  the  ground  that  by  the 
terms  of  the  agreement  each  party  appointed  an  arbitrator, 
who  then  appointed  a  thu-d  man,  and  the  cause  was  tried  by 
all  three  in  the  first  instance,  it  was  held  that  the  objection 
went  to  the  form  merel}'",  and  it  was  not  sustained.^ 

§  402.  Interpretation  clause. —  Any  provision  in  a  statute 
which  declares  its  meaning  or  purpose  is  authoritative.  Whether 
it  relates  to  the  object  of  a  whole  act,  or  of  a  single  section 
or  of  a  word,  it  is  a  declaration  having  the  force  of  law.^  It 
is  binding  on  the  courts,  though  otherwise  they  would  have 
understood  the  language  to  mean  something  different.^  De- 
claratory statutes  having  reference  to  other  existing  acts  have 
the  same  effect  prospectively.  Any  contemporaneous  con- 
struction of  the  same  words  by  the  legislature  is  high  evi- 
dence of  the  sense  intended.*  So  far  as  an  act  in  terms  professes 
to  declare  the  past  or  present  meaning  of  an  existing  statute, 
it  is  not  legislative  and  not  binding  on  the  courts.'^  It  has 
been  said  that  an  interpretation  clause  should  be  used  for  the 
purpose  of  interpreting  words  which  are  ambiguous  or  equivo- 
cal, not  so  as  to  disturb  the  meaning  of  such  as  are  plain.^  It 
is  often  inserted  for  this  purpose,  or  for  abundant  caution, 
that  there  may  be  no  misapprehension,  though  the  interpreta- 
tion so  directed  is  not  different  from  that  which  the  language 

iForshey  v.  Railroad  Co.  16  Tex.  spirit  of  that  prohibition  the  account- 

516.  ing  officers  refused  to  apply  the  dis- 

2  Jones  V.  Surprise,  64  N.  H.  243 ;  approved  construction  to  a  stUI  later 
4  New  Eng.  Rep.  292;  State  v.  Ad-  statute  of  the  same  class.  The  su- 
anis,  51  N.  BL  568 ;  State  v.  Canter-  preme  court  refused  to  change  this 
bury,  28  id.  195 ;  Herold  v.  State,  21  rulmg.  United  States  v.  Gilnxore,  8 
Neb.  50.  Wall  330. 

3  Smith  V.  State,  28  Ind.  321.  After  *  Philadelpliia,  etc.  R  R.  Co.  v. 
the  accounting  officers  of  the  federal  Catawissa  R  R  Co.  53  Pa.  St  20,  60, 
treasury  had  put  a  consti'uction  upon  61. 

certain  statutes,  another  act  of  the  s  Ante,  §§  320,  321. 

same  class  was  passed  and  appiica-  6  Reg.  v,  Pearce,  L.  R  5  Q.  B.  Div.  at 

tion  thereto  of  that  construction  was  p.  389. 

therein  prohibited,  and  following  the 


STPJCT   CONSTKUCTION.  515 

used  would  otlierwise  receive.^  In  such  cases  this  provision 
leads  to  no  difficulties  of  construction.  When,  however,  the 
clause  is  employed,  as  it  often  is,  to  make  particular  words 
mean  something  different  or  more  than  they  naturally  and 
ordinarily  signify,  it  should  be  construed  strictly.^  An  enact- 
ment based  upon  an  evident  misconception  of  what  the  law 
is  will  not  have  the  effect,  ])er  se,  of  changing  the  law  so  as 
to  make  it  accord  with  such  misconception.''  When  a  concise 
term  is  used  which  is  to  include  many  other  subjects  besides 
the  actual  thing  designated  by  the  words,  it  must  always  be 
used  with  due  regard  to  the  true,  proper  and  legitimate  con- 
struction of  the  act.* 

§  4:03.  In  England  provisions  of  this  nature  have  been  dis- 
cussed with  marked  disfavor;*  they  embarrass  rather  than 
assist  the  courts  in  their  decisions ;  ^  they  frequently  do  a 
great  deal  of  harm  by  giving  a  non-natural  sense  to  words, 
which  are  afterwards  used  in  a  natural  sense  without  the  dis- 
tinction being  noticed.'  "  It  has  been  very  much  doubted," 
says  Lord  St.  Leonards,  L.  C,  "  and  I  concur  in  that  doubt, 
whether  these  interpretation  clauses,  which  are  of  modern 
origin,  have  not  introduced  more  mischief  than  they  have 
avoided ;  for  they  have  attempted  to  put  a  general  construc- 

1  Hardc.  on  St.  104 ;  Wilb.  on  St  that  the  statutory  definitions  woidd 
296.                                   *  govern  in  the  consti'uction  of  the  stat- 

2  Allsop  V.  Day,  7  H.  &  N.  at  p.  463 ;  ute  itself,  but  the  same  words  in  an 
McGowan  v.  State,  9  Yerg.  184 ;  indictment  foimded  on  tliat  statute 
Jackman  v.  Dubois,  4  John.  216 ;  would  be  construed  entirely  by  the 
Sclunidt  V.  Hoyt.  1  Edw.  Ch.  652.  In  ordinary  use  of  language.  See  State 
State  V.  Canterbury,  28  N.  H.  at  v.  Adams,  51  N.  H.  568 ;  People  v, 
p.  238,  Bell,  J.,  says :  "  A  small  num-  Pico,  62  CaL  50 ;  Foltz  v.  Hoge,  54 
ber  of  definitions  were  inti'oduced  in  CaL  28. 

the  Revised  Statutes  for  the  sake  of  3  Davis  v.    Delpit,    25    Lliss.    445 ; 

brevity  and  to  prevent  the  recurrence  Byrd  v.  State,  57  id.  243;  Van  Nor- 

of  several  terms  which,  by  a  forced  man   v.  Jackson  Circuit  Judge,  45 

construction,  might  be  included  in  a  IMich.  204. 

single  word;    but    such  definitions  ^Midland    R'y  Co.  v.   Ambergate 

ran,  in  the  natxire  of  tilings,  have  no  R'y  Co.  10  Hare,  at  pp.  369,  370. 

effect,  except  in  the  construction  of  ^  "Wilb.  on  St  296,  297. 

the  statutes  themselves.    The  mean-  ^  Reg.  v.  Cambridgesliire  Justices,  7 

ing  of  language    depends  on  pop-  Ad.  &  E.  at  p.  491. 

ular  usage,  which  is  not  and  cannot  "  Lindsay  v.  Cundy,  L.  R  1  Q.  R 

unless  in  a  very  shght  degree,  be  af-  Div.  358. 

fected  by  legislation."    It  was  held 


516 


STEICT   CONSTEUCTION. 


tion  on  words  which  do  not  admit  of  such  a  construction  in 
the  different  senses  in  which  they  are  introduced  in  the  vari- 
ous parts  of  an  act  of  parh?anent."  ^  An  interpretation  clause 
is  not  to  receive  a  rigid  construction,  is  not  to  be  taken  as  sub- 
stituting one  set  of  words  for  another,  nor  as  strictly  defining 
what  the  meaning  of  a  word  must  be  under  all  circumstances. 
It  merely  declares  what  persons  and  things  may  be  compre- 
hended within  that  term  when  the  circumstances  require  that 
they  should.^ 

§  401.  Where  the  interpretation  clause  is  that  a  particular 
word  shall  include  a  variety  of  things  not  within  its  general 
meaning,  it  is  a  provision  b}^  way  of  extension,  and  not  a  defi- 
nition by  which  other  things  are  excluded."  "When  the  mean- 
ing is  thus  extended  the  natural  and  ordinar}^  sense  is  not  taken 
away.^  Blackburn,  J.,  said :  "It  does  not  foUow  because  in 
the  interpretation  clause  they  say  that  the  expression  'new 
street '  shaU  include  certain  other  things  we  are  to  say  it  does 
not  include  its  own  natural  sense."  ^    An  act  provided  that  the 


1  Dean  of  Ely  v.  Bliss,  2  De  G.  M. 
&  G.  at  p.  471. 

2  Reg.  T.  Cambridgeshire  Justices,  7 
Ad.  &  E.  491.  A  statute  provided  "  that 
the  word  felony,  when  used  in  this  or 
any  other  statute,  shall  be  construed 
to  mean  an  offense  for  which  the  of- 
fender, on  conviction,  shall  be  Liable 
by  law  to  be  punished  with  death,  or 
by  imprisonment  in  the  state  prison." 
"  This  provision,"  says  Cluistiancy,  J., 
"  is  but  a  legislative  definition  of  the 
term  felony  as  used  in  certain  pro- 
visions of  the  statute ;  and  its  effect 
can  only  be  known  by  reference  to 
those  provisions  where  the  term  is 
used.  Of  itself,  without  such  refer- 
ence, it  has  no  effect  upon  any  of- 
fense whatever.  Nor  can  it  be  rea- 
sonably supposed  that  it  was  intended 
to  extend  to  those  provisions  of  the 
statute  (of  wliich  there  are  two  cases 
at  least  in  the  same  revision),  which 
in  defining  the  offense  have  expressly 
designated  it  as  a  felony,  and  made 
it  punishable  m  the  state  prison ; 
for  in  such  case  no  such  general  defi- 


nition was  required.  Nor  is  there 
any  more  reason  to  iof  er  that,  where 
a  particular  provision  of  the  same  act 
(for  the  whole  revision  was  passed 
as  one  act)  has  expressly  designated 
a  particular  statute  offense  as  a  mis- 
demeanor, this  definition  was  in- 
tended to  convert  it  into  a  felony, 
though  the  provision  defining  the  of- 
fense has  made  it  pimishable  by  im- 
prisonment in  the  state  prison.  We 
must  therefore  understand  this  pro- 
vision as  intended  to  apply  only  to 
those  provisions  where  neither  the 
particular  offense  nor  its  gi-ade  is 
otherwise  indicated  than  by  the  use 
of  the  term  felony,  and  where,  there- 
fore, the  definition  became  necessary, 
as  it  was  not  intended  to  be  used 
merely  in  the  common-law  sense." 
Drennan  v.  People,  10  Mch.  169,  173. 

3  Reg.  V.  Kershaw,  6  R  &   B.  at 
p.  1007. 

4  Pound  V.  Plumstead,  L.  R  7  Q.  B. 
183. 

5  Id. 


STRICT   CONSTRUCTION.  517 

word  "slii})"  shall  include  "every  description  of  vessel  used 
ill  navigation  not  propelled  by  oars."  On  the  question  whether 
a  fishing  boat  twenty-four  feet  long,  partially  decked  over, 
and  fitted  with  two  masts  and  a  rudder,  and  also  with  four 
oars,  which  were  sometimes  used,  was  a  ship  within  the  mean- 
ing of  the  act,  the  same  learned  judge  said:  "The  argument 
against  the  proposition  that  this  is  a  ship  is  one  which  I  have 
heard  very  frequently,  viz. :  that  when  an  act  says  that  certain 
words  shall  mclude  certain  things  the  words  must  apply  ex- 
dusively  to  that  which  they  must  include.  That  is  not  so. 
The  definition  given  of  a  ship  is  in  order  that  the  word  'ship' 
may  have  a  more  extensive  meaning,  and  the  words  '  not  pro- 
pelled by  oars '  are  not  intended  to  exclude  all  vessels  that  are 
ever  propelled  b}"  oars."  ^ 

§  405.  These  considerations  have  induced  the  legislature, 
in  framing  interpretation  laws,  to  quality  them  so  that  they 
are  not  to  be  observed  and  followed  if  such  construction  would 
be  inconsistent  with  its  manifest  intent.  With  such  modifica- 
tion, the  rules  of  interpretation  generall}'-  adopted  aid  not  only 
legislators  in  drafting  statutes,  but  also  the  courts  in  their  ex- 
position. Among  these  rules  are  the  following :  Words  import- 
ing; the  sino-ular  number  onlv  mav  extend  to  and  embrace  the 
plural  number,  and  vice  versa;  -  words  importing  the  mascidine 
gender  only  may  extend  to  and  be  applied  to  females  as  weU 
as  males ;  the  word  "  person "  may  extend  and  be  appHed  to 
bodies  politic  and  corporate  as  well  as  to  natural  persons ;  ^  the 
word  "issue  "  shall  be  construed  to  include  all  the  lawful  lineal 
descendants ;  land  or  real  estate  shall  be  construed  to  include 
land,  tenements  and  real  estate  and  all  rights  thereto  and 
interests  therein;  the  word  "oath"  shall  include  an  affirma- 
tion; the  word  "month"  or  "year"  shall  be  construed  to  mean 
a  calendar  month  or  year.  Such  a  definition  of  land  and  real 
estate  is  statutory  in  Michigan,  but  the  statute  in  regard  to 
executions  required  chattels,  real  or  personal,  of  the  debtor  to 
be  taken  and  sold  by  one  ceremony,  and  his  real  estate  by 
another.  These  provisions  were  deemed  to  countervail  the 
statutory  definition  of  land  and  real  estate ;  therefore  a  sale 

1  Ferguson,  Ex  parte,  L.  R.  6  Q.  B.  -'  Hogan  v.  State,  36  Wis.  226,  247. 
291.  See  The  Gauntlet,  L.  R.  3  Adm.  ^  See  Tewksbury  v.  Schulenberg, 
38t  41  Wis.  584. 


618  STKIOT   CONSTEUCTION. 

of  a  leasehold  estate  as  land  by  the  proceedings  appropriate  to 
the  latter  kind  of  property  was  held  to  pass  no  title.^  In  the 
General  Statutes  of  Michigan  it  is  provided  that  "  the  words 
'annual  meeting,'  when  apphed  to  townships,  shall  be  con- 
strued to  mean  the  annual  meeting  required  by  law  to  be  held 
in  the  month  of  April,"  and  that  "the  words  'general  elec- 
tion' shall  be  construed  to  mean  the  election  required  by  law 
to  be  held  in  the  month  of  November."  ^  In  a  special  statute 
creating  the  city  of  Pontiac  it  was  provided  that  "  nothing  in 
this  act  shall  operate  to  prevent  the  holding  of  the  annual 
meetings  of  the  township  of  Pontiac  ...  in  said  city,  as 
though  this  act  had  not  passed."  It  was  held  that  the  general 
election  in  ^November  for  the  township  could  not  be  held  in 
the  city  under  the  saving  clause.  The  latter  was  strictly  con- 
strued in  harmony  with  the  legislative  definition.'  A  statute 
of  the  same  state  requires  that  deeds  shall  be  executed  in  the 
presence  of  two  witnesses,  "  who  shaU  subscribe  their  names 
to  the  same  as  such,"  *  A  question  arose  whether  a  deed  was 
executed  where  a  marksman,  whose  name  was  written  as  a  sub- 
scribing witness  by  another,  had  thus  witnessed,  as  one  of  the 
subscribing  witnesses,  he  having  made  his  mark  in  connection 
with  his  name.  It  was  held  a  compliance  with  the  statute,  it 
being  prescribed  by  the  defining  provisions  that  "  in  all  cases 
where  the  written  signature  of  any  person  is  required  by  law 
it  shall  be  in  the  proper  handAvriting  of  such  person,  or,  in 
case  he  is  unable  to  write,  his  proper  mark."  * 

§  406.  Retrospective  laws. —  Such  statutes,  when  not  for- 
bidden by  the  constitution,  may  be  valid,  but  there  is  always 
a  strong  leaning  against  giving  them  a  retrospective  opera- 
tion, and  this  proceeds  from  the  presumption  that  the  legisla- 
ture does  not  intend  what  is  unjust.  "Those  whose  duty  it 
is,"  says  Erie,  C.  J.,  "to  administer  the  law  very  properly 
guard  against  giving  to  an  act  of  parliament  a  retrospective 
operation,  unless  the  intention  of  the  legislature  that  it  should 
be  so  construed  is  expressed  in  clear,  plain  and  unambiguous 

1  Buhl  V.  Kenyon,  11    Mich.  249.  See  "Westinghausen  v.  People,  44  id. 

See  Westervelt  v.  People,  20  Wend.  265. 

416.  *  2  How.  St  §  5658. 

« 1  How.  St  §  2,  subd.  4  and  19.  5 1  id.  §  2,  subd.  17 ;  Brown  t.  Mo- 

» People  V.  Knight,  13  Mich-  424  Cormick,  28  Mich.  215. 


STRICT   CONSTRUCTION.  519 

langu.age."  '  Such  laws  are  looked  upon  with  general  disfavor. 
In  Dash  v.  Van  Kleeck,-  Kent,  C.  J.,  said :  "  There  has  not  been, 
perhaps,  a  distinguished  jurist  or  elementary  writer,  within 
the  last  two  centuries,  who  has  had  occasion  to  take  notice  of 
retrospective  laws,  either  civil  or  criminal,  but  has  mentioned 
them  with  caution,  distrust  or  disapprobation." 

§  407.  Construction  of  acts  affecting  previous  statutory 
policy. —  It  has  often  been  judicially  said  that  the  policy  of 
the  law  is  too  vague  and  capricious  a  consideration  to  have 
much  weight  in  the  construction  of  a  statute.  "What  is 
termed  the  policy  of  the  government,"  says  Field,  J.,  "  with 
reference  to  any  particular  legislation,  is  generally  a  very  un- 
certain thing,  upon  which  all  sorts  of  opinions,  each  variant 
from  the  other,  may  be  formed  by  different  persons.  It  is  a 
ground  much  too  unstable  upon  which  to  rest  the  judgment  of 
the  court  in  the  interpretation  of  statutes." '  It  was  remarked 
in  Municipal  Building  Society  v.  Kent,*  that  "  it  is  never  very 
safe  ground  in  the  construction  of  a  statute  to  give  weight  to 
views  of  its  policy  which  are  themselves  open  to  doubt  and 
controversy."  It  is  not  within  the  province  of  the  courts  to 
judge  of  the  wisdom  or  expedience  of  a  statute.^  With  the 
policy  of  the  law  the  courts  have  but  little  concern  in  constru- 
ing an  act  of  the  legislature.  The  intention  should  be  ascer- 
tained from  its  language,  if  possible,  considered  in  connection 
with  the  every-day  wants  and  objects  of  the  people  for  w^hose 
government  the  same  is  enacted.  That  being  ascertained  and 
effectuated,  the  duty  of  the  court  is  performed,  whether  the 
policy  thereby  subserved  be  good  or  bad.^  But  it  happens 
sometimes  that  the  intention  is  not  clearly  expressed  or  is  un- 
certain. "Then  the  hardship,  the  injustice,  and,  in  every  point 
of  view,  the  effects  and  consequences  of  particular  construc- 
tions of  a  statute,  will  be  considered ;  and  the  best  effect  of 

» Midland  R'y  Co.  v.  Pye,  10  C.  B.  s  ReithmiUer  v.  People,  44  Mich. 

<N.  S.)  191;   Bay  v.  Gage,  36  Barb.  280;   Sheley  v.  Detroit,  45  id.  431; 

447 ;  Chew  Heong  v.  United  States,  Lindenmuller  v.  People,  21  How.  Pr. 

112  U.  S.  536;  MaxweU  v.  Bay  City,  156;  People  t.  Hoym,  20  id.  76;  Peo- 

46  Mich.  278 ;  post,  §481.  pie  v.  Lawrence,  36  Barb.  177. 

2  7  John,  at  p.  506.  6  Pool  v.  Wedemeyer,  56  Tex.  287 ; 

3  Hadden  v.  The  Collector,  5  Wall  Coffin  v.  Rich.  45  Me.  507 ;  Bosley  v. 
at  p.  111.  Mattingly,  14  B.  Mon.  89 ;  Baxter  v. 

<  L.  R.  9  App.  Ca&  27a  Tripp,  12  R  L  310. 


520  STEICT    CONSTKUCTION. 

the  law,  consistent  with  its  language,  ascertained  in  the  light 
of  all  available  aids  to  a  true  understanding  of  its  meaning, 
will  be  deemed  that  intended  by  the  legislature.^  Arguments 
upon  the  policy  of  the  law,  though  undoubtedly  admissible, 
are  to  be  hstened  to  with  much  caution.  The  interpreters  of 
the  law  have  not  the  right  to  judge  of  its  policy;  and  when 
they  undertake  to  find  out  the  policy  contemplated  by  the 
makers  of  the  law,  there  is  great  danger  of  mistaking  their 
own  opinions  on  that  subject  for  the  opinions  of  those  who 
had  alone  the  right  to  judge  of  matters  of  policy.^  But  after 
a  statutory  system  or  policy  has  been  long  established  and  is 
well  defined,  it  will  not  be  lightly  presumed  to  be  departed 
from  or  abandoned.  General  language  will  be  restricted  to 
bring  the  act  into  harmony  with  it.^  Equivocal  words  will 
not  be  accepted  as  implying  an  intent  to  depart  from  a  settled 
statutory  policy.*  General  words  are  not  to  be  so  construed 
as  to  alter  the  previous  policy  of  the  law,  unless  no  sense  or 
meaning  can  be  put  upon  them  consistently  with  the  intention 
of  preserving  the  existing  pohcy  untouched.^ 

1  People  V.  Canal  Com'rs,  3  Scam.  *  Attorney-General  v.  Smith,  31 
153 ;  Collins  v.  Carman,  5  Md.  503 ;  IVHcli.  359 ;  Blackwood  v.  Van  VUet, 
Putnam  v.  Longley,  11  Pick.  487;  30  id.  118 ;  Rowley  v.  Sti-ay,  32  id.  70 ; 
post,  §  131  et  seq.  Baxter  v.  Tiipp,  12  R  I.  310 ;  Grenada 

2  Roberts  v.  Cannon,  4  Dev.  &  Bat  Co.  v.  Brogden,  112  U.  S.  261 ;  Fort  v. 
L.  267.  Burch,  6  Barb.  60. 

3  Greenhow  v.  James,  80  Va  636.  »  Minet  v.  Leman,  20  Beav.  269. 


CHAPTER  XV. 


LIBERAL  CONSTRUCTION. 


§  408.  General  explanation  of  subject. 
409-413.  Remedial  statutes  in  the 
sense  of  rule  that  they  are 
liberally  construed. 


413.  Equitable  construction. 
413.  Liberal  consti-uction. 
431.  Casus  oviissus. 


§  408.  General  statement  of  the  subject. —  The  law  favors 
a  liberal  construction  of  certain  statutes  to  give  them  the 
most  beneficial  operation.  When  they  are  liberally  construed, 
the  principles  which  induce  strict  construction  are  not  lost 
sight  of  nor  ignored.  Liberal  construction  is  given  when  these 
principles  do  not  so  antagonize  it  as  to  make  it  unjust.  Two 
classes  of  statutes  are  liberally  construed  —  remedial  statutes, 
and  statutes  which  concern  the  public  good  or  the  general 
welfare.  "What  are  such  statutes,  in  the  sense  of  being  subject 
to  liberal  construction?  Taken  broadly,  as  thus  generally 
characterized,  they  would  include  all  legislation.  This  is  not 
practically  the  scope  of  such  construction;  other  principles 
govern  and  make  the  law  conservative  in  the  interpretation 
of  statutes  and  their  enforcement  in  the  cases  and  upon  the 
considerations  discussed  in  the  last  chapter.  Blackstone  says 
that  for  the  purpose  of  ascertaining  the  boundaries  of  right 
and  wrong,  and  the  methods  which  the  law  takes  to  command 
the  one  and  prohibit  the  other,  it  consists  of  several  parts ; 
"  one  declaratory^  whereby  the  rights  to  be  observed  and  the 
wrongs  to  be  eschcAved  are  clearly  defined  and  laid  down ;  an- 
other directory,  whereby  the  subject  is  instructed  and  enjoined 
to  observe  those  rights  and  abstain  from  the  commission  of 
those  wrongs ;  a  third,  remedial,  whereby  a  method  is  pointed 
to  recover  a  man's  rights  or  redress  his  private  wrongs."  ^ 
This  eminent  writer  adds  that  the  declaratory  and  directory 
parts  siand  much  upon  the  same  footing,  and  thp  remedial 
part  so  necessary  a  consequence  of  those  other  parts  that 
the  laws  would  be  very   vague   and  imperfect  without  it.^ 

1 1  Cooley's  Black.  Com.  55.  -'  1  Id. 


522  LIBERAL   CONSTEUCTIOIT. 

On  a  subsequent  page  he  says  that  "  statutes  also  are  either 
declaratory  of  the  common  law  or  remedial  of  some  defects 
therein;"  that  "remedial  statutes  are  those  which  are  made 
to  supply  such  defects  and  abridge  such  superfluities  in  the 
common  law  as  arise  either  from  the  general  imperfection  of 
all  human  laws,  from  change  of  time  and  circumstances,  from 
mistakes  and  unadvised  determinations  of  unlearned  (or  even 
learned)  judges,  or  from  any  other  causes  whatever."  ^ 

§409.  Remedial  statutes  to  Ibe  liberally  construed. —  In 
the  modern  sense  remedial  statutes  not  only  include  those 
which  so  remedy  defects  in  the  common  law,  but  defects  in 
our  civil  jurisprudence  generally,  embracing  not  only  the  com- 
mon law,  but  also  the  statutory  law.  They  are  in  a  general 
sense  remedial  whether  they  correct  defects  in  the  declara- 
tory, directory  or  remedial  parts,  as  the  author  just  quoted  has 
defined  them.  There  are  also  the  three  points  mentioned  by 
this  author  to  be  considered  in  the  construction  of  all  remedial 
statutes  —  the  old  law,  the  mischief  and  the  remedy ;  that  is, 
how  the  law  stood  at  the  making  of  the  act;  the  mischief 
for  which  that  law  did  not  adequately  provide,  and  what  rem- 
edy the  legislature  has  supplied  to  cure  this  mischief.  And 
it  is  the  duty  of  judges  so  to  construe  the  act  as  to  suppress 
the  mischief  and  advance  the  remedy.-  This  injunction  is 
simply  to  carry  out  the  intention  of  the  law-maker,  which  is 
the  cardinal  aim  with  reference  to  all  statutes.  The  inten- 
tion in  statutes  which  are  for  this  purpose  recognized  as  reme- 
dial or  enacted  pro  hono  publico  is  more  hberally  inferred,  and 
to  a  greater  extent  dominates  the  letter,  than  is  admissible  in 
dealing  with  those  which  must  be  strictly  construed. 

§  410.  Broad  as  is  the  definition  of  statutes  to  be  liberally 
construed,  none  will  be  excluded  from  the  category  except 
where  some  other  paramount  rule  governs.  Penal  statutes, 
and  many  others  for  special  reasons,  are  excluded.  The  letter 
of  remedial  statutes  may  be  extended  to  include  cases  clearly 
within  the  mischief  they  were  intended  to  remedy,  unless 
such  construction  does  violence  to  the  language  used ;  but  a 
consideration  of  the  old  law,  the  mischief,  and  the  remedy, 
is  not  enough  to  bring  cases  within  the  purview  of  penal 
statutes,  nor,  indeed,  any  statute  which  must  be  strictly  con- 

1 1  Cooley's  Black.  Com.  86,  87.  2  id. 


LIBERAL   CONSTRUCTION.  523 

strued.     Cases  must  be  expressly  included  by  the  words  of 
these  statutes  to  be  governed  by  them.     This  is  all  the  differ- 
ence between  a  liberal  and  a  strict  construction.     A  case  may 
come  within  one  unless  the  language  excludes  it ;  while  it  is 
excluded  by  the  other  unless  the  language  includes  it.'     Con- 
struction, whether  it  be  liberal  or  strict,  is  an  inquiry  for  and 
determination  of  the  law-makers'  intention  to  give  it  effect. 
"  As  for  construing  a  statute  by  equity,"  Lord  Mansfield  said, 
"  equity  is  synonymous  to  the  meaning  of  the  legislature."  - 
So  conservative,  however,  is  the  law  as  to  severe  statutes, 
which,  therefore,  must  be  construed  strictly,  that  every  case 
must  be  brought  within  both  their  letter  and  their  spirit.' 
A  remedial  statute  must  be  construed  largely  and  beneficially 
so  as  to  suppress  the  mischief  and  advance  the  remedy.     And 
if  its  words  are  not  clear  and  precise,  such  construction  will 
be  adopted  as  shall  appear  the  most  reasonable  and  the  best 
suited  to  accomplish  its  object ;  a  construction  which  would 
lead  to  an  absurdity  will  be  rejected.^    And,  generally,  it  may 
be  affirmed  that,  if  a  statute  may  be  liberally  construed,  every- 
thing is  to  be  done  in  advancement  of  the  remedy  or  the 
purpose  intended  that  can  be  done  consistently  with  any  con- 
struction that  can  be  put  upon  it.^    The  substance  of  the  act 
is  principally  regarded  and  the  letter  is  not  too  closely  ad- 
hered to.®    A  remedial  statute  must  be  construed,  if  possible, 
so  as  to  correct  the  mischief  at  which  it  is  aimed ; '  though, 
if  the  language  is  very  explicit,  there  is  great  danger  in  de- 
2:)arting  from  the  words  used  to  give  an  effect  to  the  law  which 
may  be  supposed  to  have  been  designed  by  the  legislature.^ 

§  411.  The  courts  construe  remedial  statutes  most  liberally 
to  effectuate  the  remedy.^    This  principle  operates  to  exclude 

1  State  V.  Powers,  36  Conn.  77.  ">  Fox  v.  Sloo,  10  La,  Ann.  11 ;  Fox 

2  Rex  V.  Williams,  1  W.  Black.  93 ;  v.  New  Orleans,  12  id.  154 ;  Davenport 
Blakeney  v.  Blakeney,  6  Port  109;  v.  Barnes,  2  N.  J.  L.  211;  AVilber  v. 
Mayor,  etc.  v.  Root,  8  Md.  95 ;  Wood-  Paine,  1  Ohio,  117 ;  Pancoast  v.  Ruf- 
ruff  V.  State,  3  Ark,  284  fin,  1  Ohio,  177 ;  Lessee  of  Burgett  v. 

3  Ante,  %  349.  Burgett,  1  Ohio,  219 ;  McCormick  t. 
*  Sprowl  V.  Lawrence,  33  Ala.  674 ;    Alexander,  2  Ohio,  74 ;  Franklin   v. 

Gilkey  v.  Cook,  60  Wis.  133.  Franklin,  1  Md.  Ch.  342. 

5  Atcheson  v.  Everett,  1  Cowp.  391 ;  8  Denn  v.  Reid.  10  Pet  524 ;  Guth- 
Johnes  v.  Jolines,  3  Dow,  15 ;  Turtle  rie  v.  Fisk,  3  B.  &  C.  at  p.  182 ;  Brand- 
V.  Hart%veU,  6  T.  R  426.  ling  v.  Barrmgton,  6  B.  &  C.  475. 

6  Moody  V.  Threlkeld,  13  Ga.  55.  » Id. 


524  LIBERAL   CONSTRUCTION. 

as  well  as  to  include  cases  in  furtherance  of  tlie  law-makers' 
intention.  That  which  is  not  in  the  purpose  or  meaning,  nor 
within  the  mischief  to  be  remedied,  is  not  included  in  the  stat- 
ute, even  though  it  be  within  the  letter.^  The  couits  follow 
the  reason  and  spirit  of  such  statutes  till  they  overtake  and 
destroy  the  mischief  Avhich  the  legislature  intended  to  sup- 
press.'- In  doing  so  they  often  go  quite  beyond  the  letter  of 
the  statute.^  What  is  within  the  intention  is  within  the  stat- 
ute though  not  within  the  letter;  and  what  is  within  the  letter 
but  not  within  the  intention  is  not  within  the  statute* 

§  413.  The  intention  is  not  something  evinced  deJiors  the 
statute ;  it  is  to  be  learned  from  it,  with  those  extrinsic  aids 
to  a  correct  interpretation  to  which  resort  may  be  had;  and 
that  intention,  when  satisfactorily  ascertained,  is  the  design 
to  which  the  letter  is  subordinated.  And  it  is  ever  to  be  borne 
in  mind  that  the  intention  is  to  be  collected  from  the  words, 
the  context,  the  subject-matter,  the  effects  and  consequences, 
the  spirit  and  reason  of  the  law,  and  other  acts  in  pari  ma- 
terial' What  is  liberal  construction  can  be  better  understood 
with  these  general  principles  in  mind,  by  study  of  a  multitude 
of  well-considered  cases,  and  by  carefully  considering  the  re- 
ciprocal influence  of  the  principles  which  underhe  the  two 
modes  of  construction  —  strict  and  liberal.  A  liberal  con- 
struction is  given  to  remedial  statutes,  and  statutes  generally 
enacted  for  the  public  convenience  and  for  its  material  wel- 
fare, except  as  modified  or  neutralized  by  the  conservatism 
upon  which  strict  construction  is  founded. 

§  413.  Equitable  construction. —  Early  acts  of  parliament 
were  brief  and  general  in  their  terms.  They  were  made  to 
operate  upon  a  very  latitudinary  construction  in  both  civil 
and  criminal  cases.  The  courts  proceeded  upon  what  was 
called  the  equity  of  the  statute.  "  Equity,"  said  Lord  Coke, 
•'  is  a  construction  made  by  the  judges  that  cases  out  of  the 

i  Taylor  v.  McGill,  6  Lea,  294  4  Mayor,   etc.   v.   Root,   8  Md.   95 ; 

-  Shumate  v.  Williams,  34  Ga.  251.  Cliealy  v.  Brewer,  7  Mass.  259 ;  State 

3Id. ;   Henderson  v.   Alexander,  2  v.  Boyd,  2  Gill  &  J.  374;  Woodruil 

Ga.  81;  Booth  v.  Williams,  id.  252;  v.  State.  3  Ark.  285 ;  Brown  v.  Gates, 

Howard  v.  Ceuti-al  Bank,  3  id.  380 ;  15  W.   Va.    131 ;    Eyston    v.   Studd, 

Ragland  v.  Justices,  10  id.  71 ;  Canal  2  Plowd.  at  p.  464. 
Co.  V.  Railroad  Co.  4  Gill  &  J.  152 ;        5  Woodruff  v.  State,  3  Ark.  285. 
Milburn  v.  State,  1  Md.  17. 


LIBERAI,   CONSTKUCTION. 


525 


letter  of  the  statute,  yet  being  within  the  same  mischief,  or 
cause  of  the  making  of  the  same,  shall  be  "within  the  same 
remedy  that  the  statute  provideth;  and  the  reason  thereof  is, 
for  that  the  law-mnkers  could  not  possibly  set  down  all  cases 
in  express  terms."  ^  While  this  mode  of  construing  statutes 
was  in  vogue,  principles  and  instances  illustrative  of  them 
were  announced  which  have  become  embedded  in  the  literature 
of  the  law ;  they  still  are  quoted  when  courts  give  a  very  lib- 
eral construction  to  statutes.  These  are  but  relics  of  ancient 
hermeneutics  which  do  not  survive  entire.- 


1 1  Inst  245. 

2  There  is  in  2  Plowden,  465,  an  in- 
teresting and  instructive  review  and 
resume  of  construction  of  statutes  by 
equity  as  practiced  in  the  time  of 
Queen  EUzabeth. 

The  concluding  words  of  the  judg- 
ment in  Eyston  v.  Studd  will  indi- 
cate the  nature  of  that  case : 

"Wherefore  a  man  ought  not  to 
rest  upon  the  letter  of  an  act,  nor 
think  that  when  he  has  the  letter  on 
liis  side  he  has  the  law  on  his  side  in 
all  cases.  For  if  a  woman  is  seized 
of  land  in  fee-simple,  and  she  intends 
to  marry,  and  before  the  marriage 
she  enfeoffs  the  father  of  him  whom 
she  intends  to  marry,  to  the  intent 
that  after  the  marriage  he  shall  give 
the  land  back  again  to  her  and  to 
him  whom  she  intends  to  marry, 
with  remainder  over  in  tail,  and 
afterwards  they  intermarry,  and 
then  the  father  gives  the  land  to  liis 
said  son  and  to  liis  wife  according  to 
the  intent,  and  they  have  issue,  and 
the  husband  dies,  and  she  levies  a 
fine  to  other  uses,  now  the  wife  is 
within  the  words  of  the  statute  of  11 
Hen.  7,  for  the  land  was  given  to 
her  and  to  her  husband  in  tail  by  tlie 
ancestor  of  tlie  husband,  and  after 
the  death  of  the  husband  she  has 
leWed  a  fine  to  bar  the  issue:  but 
uotwitlistanding  that  she  is  witliin 
the  words  of  the  act,  yet  she  is  out 


of  the  intent  of  the  act  and  there- 
fore the  issue  shall  not  enter ;  for  the 
estate-taU  was  made  by  tlie  wife  by 
circumstance,  and  is  derived  from 
her,  and  the  father  of  the  husband 
had  the  land  to  no  other  intent  but 
to  make  the  estate,  and  to  that  in- 
tent and  purpose  he  was  made  use  of 
as  an  instrument,  so  that  the  effect 
of  the  whole  matter  was  to  make  a 
jointure  to  the  husband  out  of  the 
land  of  the  wife,  which,  although 
witliin  the  letter  of  the  act  of  11  H.  7, 
yet  it  is  out  of  the  intent  of  it,  and 
consequently  out  of  the  purview." 
To  tins  the  reporter  adds  an  exliaust- 
ive  note.     He  says : 

"  From  this  judgment  and  the  cause 
of  it  the  reader  may  observe  that 
it  is  not  the  words  of  the  law  but  the 
internal  sense  of  it  that  makes  the 
law,  and  our  law  (hke  all  others)  con- 
sists of  two  parts,  viz.,  of  body  and 
soul ;  the  letter  of  the  law  is  the  body 
of  the  law,  and  the  sense  and  reason 
of  the  law  is  the  soul  of  the  law, 
quia  ratio  legis  est  anivia  legis.  And 
the  law  may  be  resembled  to  a  nut 
which  has  a  shell  and  a  kernel  witliin ; 
the  letter  of  the  law  represents  the 
shell,  and  the  sense  of  it  the  kernel. 
And  as  jou  will  be  no  better  for  tlie 
nut  if  you  make  use  only  of  the  shell, 
so  you  will  receive  no  benefit  by  the 
law  if  you  rely  only  upon  the  letter ; 
and  as  the  fruit  and  profit  of  the  nut 


526 


LIBERAL   CONSTKUCTION. 


It  is  said  in  Plowden,^  for  wliich  there  were  many  instances, 
that  "  where  an  act  is  made  to  remedy  any  mischief,  there  in 


lies  in  the  kernel,  and  not  ia  the 
shell,  so  the  fruit  and  profit  of  the 
law  consists  in  the  sense  more  than 
ia  the  letter.  And  it  often  happens 
that  when  you  know  the  letter  you 
know  not  the  sense,  for  sometimes 
the  sense  is  more  confined  and  con- 
ti'acted  than  the  letter,  and  some- 
times it  is  more  large  and  extensive. 
And  equity,  which  ui  Latin  is  called 
equitas,  enlarges  or  diminishes  the 
letter  according  to  liis  discretion, 
wliich  equity  is  in  two  ways;  the 
one  Aristotle  defines  thus:  Equitas 
est  coiTectio  legis  generatitn  latce 
qud  parte  deficit,  or  as  the  pas- 
sage is  explained  by  Perionius: 
Equitas  est  con^ectio  quoedam  legi 
adhibita,  quia  ab  ea  abest  aliquid 
propter  generalem  sine  exceptione 
comprehensionem,  both  of  which  defi- 
nitions come  to  one  and  the  same 
thing.  And  this  correction  of  the  gen- 
eral words  is  much  used  in  the  law 
of  England.  As  when  an  act  of  par- 
Hament  ordains  that  whosoever  does 
such  an  act  shall  be  a  felon  and  shaU 
suffer  death,  yet  if  a  man  of  imsoimd 
mind,  or  an  infant  of  tender  age  who 
has  no  discretion,  does  the  act,  they 
shall  not  be  felons,  nor  shaU  they  be 
put  to  death.  And  if  a  statute  be 
made  that  all  persons  who  shall  re- 
ceive or  give  meat  or  drink  or  other 
aid  to  him  that  shall  do  such  an  act 
(knowing  the  same  to  be  done),  shall 
be  accessories  to  the  offense,  and  shall 
be  put  to  death,  yet  if  a  man  commits 
the  act,  and  comes  to  his  own  wife, 
who  knowing  the  same  receives  him, 
and  gives  him  meat  and  drink,  she 
shall  not  be  accessory  to  his  offense, 
nor  a  felon ;  for  one  that  is  of  unsound 
nimd,  an  infant,  or  a  wife,  were  not 
intended  to  be  included  in  the  gen- 


eral words  of  the  law.  So  that  ia 
these  cases  the  general  words  of  the 
law  are  corrected  and  abridged  by 
equity.  .  .  .  And  the  statute  of 
Westminster  1,  cap.  4,  touching 
wreck  of  the  sea,  ordains  '  that  when 
a  man,  dog,  or  cat,  escape  aUve  out 
of  the  ship,  such  ship  or  anything 
within  it  shall  not  be  adjudged 
wreck,  but  the  goods  shall  be  saved 
and  kept  by  view  of  the  sheriff, 
coroner  or  king's  bafiiff,  and  dehvered 
into  the  hands  of  such  as  are  of  the 
town  where  the  goods  were  found,  so 
that  if  any  sues  for  the  goods,  and 
can  prove  that  they  were  his,  within 
a  year  and  a  day,  they  shall  be  re- 
stored to  him  without  delay,  and  if 
not,  they  shall  remain  to  the  king, 
and  shall  be  seized  by  the  sheriff,  cor- 
oner, etc.,  and  be  dehvered  to  them  of 
the  town,  who  shall  answer  before  the 
justices  for  the  wTeck  wliich  belongs 
to  the  king;  and  where  wreck  be- 
longs to  another  than  to  the  king,  he 
shall  have  it  in  hke  manner ;  and  he 
that  does  otherwise,  and  thereof  is  at- 
tainted, shall  be  awarded  to  prison, 
and  make  fijie  at  the  king's  will,  and 
shall  yield  damages  also.'  Now  put 
the  case  that  the  goods  in  such  ship 
are  fresh  victuals,  as  flesh,  fresh  fish, 
or  apples,  or  oranges,  or  such  peri'sh- 
able  goods  as  cannot  be  kept  for  a 
year,  and  the  sheriff  sells  them,  and 
deUvers  the  money  arising  from  the 
sale  of  them  to  the  town  to  answer 
for  it,  in  tliis  case  he  has  broken  the 
words  of  the  act,  and  therefore,  if  we 
adjudge  according  to  the  words,  the 
sheriff  should  be  sent  to  prison,  and 
be  fined  at  the  wiU  of  the  king,  and 
should  pay  damages;  but,  on  the 
other  hand,  if  we  foUow  the  sense 
and  meaning  of  the  act,  he  has  d6ne 


1  Hill  V.  Grange,  1  Plowd.  at  p.  178. 


LIBERAL   CONSTRUCTION. 


527 


order  to  aid  things  in  like  degree,  one  action  has  been  used 
for  another,  one  thing  for  another,  one  place  for  another,  and 


well,  and  shall  not  be  punished,  for 
the  meaning  of  the  act  is,  that  such 
things  as  could  be  kept  for  a  year, 
without  spoil  or  damage,  should  be 
kept  so  long,  but  if  the  things  are  so 
perishable  that  they  cannot  be  pre- 
served a  whole  year,  nor  perhaps  two 
days,  then  it  was  not  the  intent  of 
the  makers  of  the  act  that  the  sheriff 
should  let  them  fall  to  decay,  but 
rather  that  he  should  immediately 
make  the  most  of  them  he  could ;  so 
that  although  the  sheriff  has  done 
conti'aiy  to  the  words  of  the  law  by 
selling  the  goods  within  a  year,  yet 
he  has  not  broken  the  law,  but  has 
punctually  observed  it,  inasmuch  as 
he  has  observed  the  intent  and  mean- 
ing of  the  makers  of  the  law.  .  .  . 
(The  reporter  states  many  other  in- 
stances of  imphed  exceptions  from 
the  general  words  in  harmony  with 
the  intent,  or  to  exclude  cases  not 
within  the  mischief,  and  proceeds  to 
give  the  instances  of  enlarging  the 
letter.)  The  other  kind  of  equity 
differs  much  from  the  former,  and  is 
in  a  manner  of  quite  a  contrary 
effect,  and  may  well  be  thus  defined : 
Equitas  est  vei'bonim  legis  diredio 
efflcacius,  cum  una  res  fuluvimodo 
legis  caveatur  verbis,  ut  omnis  alia  in 
eguali  genere  eisdem  caveatur  verbis. 
And  this  definition  seems  agreeable  to 
that  of  Bracton,  wliich  is  thus :  Equi- 
tas est  reintm  convenientia  gtice  in 
jmribu^  cavMs  paria  desiderat  jura, 
et  omnia  bene  coaiquiparet,  et  decitur 
equitas  quasi  cequalitas.  So  that 
when  the  words  of  a  statute  enact 
one  tiling,  they  enact  aU  other  tilings 
which  are  in  the  hke  degi-ee.  As  the 
statute  which  ordains  that  in  an  action 
of  debt  against  executors  he  who 
comes  first  by  distress  shall  answer, 
is  extended  by  eqmty  to  administra- 


tors, and  such  of  them  as  come  first 
by  distress  shall  answer  by  the  equity 
of  the  said  statute,  quia  sunt  in 
cequali  genere.  And  the  act  of  4  H.  4, 
cap.  8,  gives  a  special  assize  to  him 
who  is  disseized  and  ousted  of  his 
land  by  force,  against  the  disseizor, 
and  enacts  that  he  shall  recover 
against  him  double  damages ;  and  in 
the  book  of  entries  (Rasti),  fo.  406,  it 
appears  that  the  plaintiff  recovered 
by  judgment  double  damages  in  an 
assize  of  nuisance  for  turning  a 
water-course  with  force,  to  the  nui- 
sance of  his  mills,  wherein  it  was 
found  for  the  plaintiff ;  and  yet  there 
he  was  not  ousted  of  his  land,  nor 
did  he  suffer  any  disseizin,  but  only 
a  nuisance  to  the  damage  of  his  free- 
hold, viz.,  his  mUls,  whereof  he  con- 
tinued seized ;  so  that  by  the  equity 
of  the  said  statute  the  plaintiff  re- 
covered his  double  damages  for  the 
nuisance,  because  it  is  in  hke  degree 
with  a  disseizin  of  land. 

"  And  the  statute  of  Gloucester  gives 
an  action  of  waste  and  the  punish- 
ment therein  against  him  that  holds 
for  life  or  for  years,  and  by  the  equity 
thereof  a  man  shall  have  an  action  of 
waste  against  him  who  holds  but  for 
a  year,  or  for  twenty  weeks,  and  yet 
this  is  out  of  the  words  of  the  act^ 
for  he  that  holds  but  for  one  year 
does  not  hold  for  years;  but  it  is 
within  the  intent  of  the  act,  and  the 
words  which  enact  the  one  do  by 
equity  enact  the  other.  And  so  tliere 
are  an  infinite  number  of  cases  ia 
our  law  wliich  are  in  equal  degiee 
with  othei-s  provided  for  by  statutes, 
and  are  taken  by  equity  within  the 
meaning  of  those  statutes.  And  from 
hence,  it  appears  that  there  is  a  great 
diversity  between  tiiese  two  equities, 
for  the  one  abridges  the  letter,  the 


b'2S 


LIBERAL    CONSTRUCTION. 


one  person  for  another,  notwithstanding  that  in  some  cases  the 
thing  is  penal"  ^     The  word  "ancestor,"  in  Westminster  the 


other  enlarges  it ;  the  one  diminishes 
it,  the  other  amphfies  it ;  the  one  takes 
from  the  letter,  the  other  adds  to  it. 
So  that  a  man  ought  not  to  rest  upon 
the    letter    only,  narn  qui  hceret  in 
litera,  licBret  in  cortice,  but  he  ought 
to  rely  upon  the  sense,  which  is  tem- 
jjered    and    giiided  by    equity,  and 
therein  he  reaps  the  f laiit  of  the  law ; 
for  as  a  nut  consists  of  a  shell  and  a 
kernel,  so  every  statute  consists  of 
the  letter  and  the  sense,  and  as  the 
kernel  is  the  fruit  of  the  nut,  so  the 
sense  is  the  fruit  of  the  statute.   Aiid  in 
order  to  form  a  right  judgment  when 
the  letter  of  a  statute  is  restiained, 
and  when  enlarged  by  equity,  it  is  a 
good  way,  when  you  peruse  a  statute, 
to   suppose    that  the   law-maker  is 
present,  and  that  you  have  asked  him 
the  question  you  want  to  know  touch- 
ing the  equity ;  then  you  must  give 
youi'self  such  an  answer  as  you  im- 
agine he  would  have  done,  if  he  had 
been  present.    As,   for  example,  in 
the  case  before  mentioned  where  the 
sti-angers  scale  the  walls,  and  defend 
the  city,  suppose  the  law-maker  to  be 
present  with  you,  and  in  your  own 
mind  put  this  question  to  him :  Shall 
the  strangers  be  put  to  death?    Then 
give  yom-self  the  same  answer  which 
you  imagine  he,  being  an  upright 
and   reasonable   man,    would   have 
given,    and    you    will  find  that  he 
would  have  said,  '  they  shall  not  be 
put  to   death.'     .     .    .     And  there- 
fore when  such  cases  happen  wliich 
are  within  the  letter,  or  ovit  of  the  letter 
of  a  statute,  and  yet  don't  directly 
fall    within  the  plain  and    natiual 
purport  of  the  letter,  but  are  in  some 
measure  to  be  conceived  in  a  different 
idea  from  that  which  the  text  seems 
to  express,  it  is  a  good  way  to  put 


questions  and  give  answers  to  your- 
self thereupon,  in  the  same  manner  as 
if  you  were  actually  conversing  with 
the  maker  of  such  laws,  and  by  this 
means  you  will  easily  find  out  what 
is  the  equity  in  those  cases.    .    .    . 
And  where  the    statute  of  37  H.  8, 
cap.  8,  took  away  clergy  from  liim 
that  stole  any  horse,  and  the  statute 
of   1    Edw.  6,  cap.  12,   enacted  that 
those  who  were  attainted  of  steaUng 
horses  should  not  have  their  clergy, 
but  that  in  aU  other  cases  of  felony 
persons  attainted  should  have  their 
clergy,    I    by  no   means    commend 
the    scrupulosity  of    the    judges  in 
these  times  who  took  the  law  to  be 
thereupon,  that    he  who    stole  one 
horse  only  should  have  his  clergy, 
and  therefore  procured  the  act  of  3 
Edw.  6,  cap.  33,  to  be  made,  which 
ousted  liim  of  his  clergy  who  stole 
one  horse  only ;  for  where  the  stat- 
ute speaks  of  stealing  horses,  although 
it  speaks  in  the  plural  number,  yet, 
by  eciuity  (which  considers  the  intent 
of  the  legislature),  it  ought  also  to 
comprehend  one  singular  horse  only, 
and  that  as  fully  as  if  it  had  said 
horses  or  horse :  and  the  clause  in  the 
act  wliich  says  that  in  all  other  cases 
of  felony  persons  attainted  thereof 
shall  have  their  clergy  is  to  be  inter- 
preted and  intended  of  others  than 
those  w  ho  steal  horses  or  a  horse ;  for, 
as  the  statute  of  Gloucester,  which 
gives  an  action  of  waste  against  him 
that  holds  for  years,  in  the  plural 
number,  may  be  taken  to  compre- 
hend him  who  holds  but  for  one  year, 
so  may  the  said  statute  which  speaks 
of  horses  in  the  plural  nimiber  be  in- 
terpreted to  comprehend  one  horse 
in    the    singular    nvmiber.      And  if 
it  be    said  that  the  law   is  penal  in 


1  See  Wheatley  v.  Lane,  1  Williams'  Saund.  (&  Wilhams'  Notes)  216. 


LIBEKAL   CONSTRUCTION.  529 

First,'  is  extended  so  as  to  include  predecessor.'  The  remedy 
given  by  the  9th  Edward  III.,  chapter  3,  against  executors, 
was  extended  by  equitable  construction  to  administrators.' 
The  statute  of  1  Richard  II.,  chapter  12,  which  forbade  the 
warden  of  the  Fleet  to  suffer  his  prisoners  for  judgment  debts 
to  go  at  large  until  they  had  satisfied  their  debts,  was  held  to 
include  all  jailors.'*  The  statute  of  Westminster  2,  chapter  31, 
which  gave  the  bill  of  exceptions  to  the  ruling  of  the  judges  of 
the  common  pleas,  was  held  applicable  to  the  other  judges  of  the 
superior  courts,  and  also  to  the  county  courts,  the  hundred  and 
the  courts  baron ;  to  the  inferior  courts,  because  their  judges 
were  still  more  liable  to  err.*  The  statute  of  Gloucester,  chaj> 
ter  11,*  in  six^aking  of  London,  was  considered  as  intending  to 
include  all  cities  and  boroughs  equally,  the  capital  having  been 
named  alone  for  excellency.'  The  statute,  or  writ  of  circum- 
specti  agutis^  13  Edward  I.,  which  directs  the  judges  not  to  in- 
terfere with  the  Bishop  of  Norwich  or  his  clergy  in  spiritual 
suits,  was  construed  as  pix)tecting  all  other  prelates  and  eccle- 
siastics, the  Bishop  of  Norwich  being  put  but  for  an  example.* 
§  414.  Whatever  the  reasons  for  this  latitudinary  construc- 
tion of  statutes,  whether  it  came  from  their  being  brief  and 
general,  fi'amed  by  the  judges  themselves,  and  the  uncertainty 
of  the  line  dividing  legislative  from  judicial  functions,  it  is  part 
of  the  history  of  the  law.  The  underlying  principle  is  obsolete,* 
though  to  a  limited  extent  it  still  exercises  some  influence 
in  the  domain  of  liberal  construction.  Some  examples  of  it 
are  yet  made  to  do  duty,  as  fit  illustrations  of  the  expansive 
and  elastic  quality  of  remedial  laws.^'    The  principle  on  which 

this  case,  to  tliis  it  may  be  answered  '  Eyston   v.    Studd,    supra.      See 

that  so  it  is  also  in  the  other  case ;  but  Hoguet  v.  Wallace,  28  N.  J.  L.  at 

equity  knows  no  difference  between  p.  526. 

penal  laws  and  others,  for  the  intent  *  Piatt  v.  Lock,  1  Plowd.  3o. 

(which  is  the  only  thing  regarded  by  *  2  Inst  426 ;  Sti-other  v.  Hutchin- 

equity,  as  may  appear  to  every  one  son,  4  Bing.  N.  C.  83. 

who  pursues  the  method  of  inquiry  ^  6  Edw.  L 

by  way  of  question  and  answer  in  '2  Inst  321 ;  Endlich,  Int  St  §  322. 

the  manner  before  intimated)  ought  8  Id. ;  2  Inst  487. 

to  be  foUowed  and  taken  for  law,  as  ^  Hardcastle  on  St  39 ;  Ex  parte 

weU  in  penal  laws  as  in  others."    See  Walton,  L.  R  17  Ch.  Div.  750. 

Wimbish  V.  Tailbois,  1  Plowd  38.  '"Simonton  v.  BaritiU,  21    Wend 

I  3  Edw.  I.  ch.  40.  362 ;  United  States   v.  Freeman,    3 

«  2  Inst  242.  How,  at  p.  565. 
34 


530  LIBEnAL    OONSTETJCTION. 

the  courts  proceeded  in  giving  effect  to  the  equity  of  a  statute 
seems  to  have  been  that  of  supplementing  the  statute  by  ex- 
tending it  to  like  cases,  and  arresting  its  operation  in  cases  not 
deemed  to  be  within  its  purpose.     It  has  an  ingredient  of  leg- 
islative discretion,'  and  is  not  strictly  or  solely  a  principle  of 
construction.     The  court  did  what  it  was  supposed  from  the 
act  passed  the  legislature  would  have  done  had  its  attention 
been  called  to  the  similar  case  in  hand.     They  apphed  the 
common-law  maxim,  quod  in  nno  similhiin  valet,  valebit  in  al- 
ter o,  or,  as  Coke  puts  it, '-  If  they  be  in  hke  reason,  they  are  in 
hke  law."  -     Lord  Westbury  spoke  of  equitable  construction 
of  statutes  as  "  a  mode  of  interpretation  very  common  with 
regard  to  our  earlier  statutes,  and  very  consistent  with  the 
principle  and  manner  according  to  which  acts  of  parhament 
were  at  that  time  framed."  *    In  Guthrie  v.  Fisk,*  Bayley,  J., 
denounced  it  as  "  a  dangerous  rule  of  construction  to  intro- 
duce words  not  expressed  because  they  may  be  supposed  to 
be  within  the  mischief  contemplated."     And  another  learned 
judge  on  the  English  bench  said :  "  I  think  there  is  always 
danger  in  giving  effect  to  what  is  called  the  equity  of  a  stat- 
ute, and  that  it  is  much  better  to  rely  on  and  abide  by  the 
plain  words,  although  the  legislature  might  possil^ly  have  pro- 
vided for  other  cases  had  their  attention  been  directed  to 
them."  '    Lord  Camden «  said:  "Where  it  is  clear  the  person 
or  thing  expressed  is  put  by  way  of  example,  the  judges  must 
fill  up  the  catalogue ;  yet  we  ought  to  be  sure,  from  the  words 
and  meaning  of  the  act  itself,  that  the  thing  or  person  is  really 
inserted  as  an  example.    .     .    .    Whenever  this  rule  is  to  take 
place,  the  act  must  be  general,  and  the  thing  expressed  must 
be  particular.     ...     In  all  cases  that  fall  within  this  rule, 
there  must  be  a  perfect  resemblance  between  the  persons  or 
things  expressed  and  those  implied." 

§415.  What  is  liberal  construction. —  A  statute  extends 
no  further  than  it  expresses  the  legislative  wiU.  When  it  is 
held  to  embrace  a  case  which  is  within  its  spu-it,  though  not 

1  Annan  v.  Houck,  4  Gill,  at  p.  332.  5  Lord  Tenterden  in  Brandling  v. 

2  Coke  Lit  191a.  Barrington,  6  B.  &  C.  at  p.  475. 

3  Hay  V.  Lord  Provost  of  Perth,  4  «  Entick  v.  Carrington,  19  How.  St 
Macq.  Sc.  App.  at  p.  544  Tr.  1029,  1060. 

*3  B.  &  C.  at  p.  183. 


LIBEILA.L   CONSTRUCTION.  531 

within  its  letter,  it  is  not  meant  that  the  courts  have  authority 
to  extend  a  statute  to  cases  for  which  it  does  not  by  its  words 
provide,  or  beyond  the  sense  of  its  language.  A  statute  is  a 
written  law,  and  it  cannot  be  construed  to  have  a  sense  and 
spirit  not  deducible  from  its  provisions.  It  is  a  general  rule 
that  courts  must  find  the  intent  of  the  legislature  in  the  statute 
itself.  Unless  some  ground  can  be  found  in  the  statute  for 
restraining  or  enlarging  the  meaning  of  its  general  Avords,  the}' 
must  receive  a  general  construction ;  the  courts  cannot  arl^i- 
trarily  subtract  from  or  add  thereto.^  The  modern  doctrine  is 
that  to  construe  a  statute  hberally  or  according  to  its  equity 
is  nothing  more  than  to  give  effect  to  it  according  to  the  inten- 
tion of  the  law-maker,  as  indicated  by  its  terms  and  purposes. 
This  construction  may  be  carried  beyond  the  natural  import  of 
the  words  when  essential  to  answer  the  evident  purpose  of  the 
act ;  so  it  may  restrain  the  general  words  to  exclude  a  case 
not  within  that  purpose. 

§  416.  There  is  no  arbitrary  form  of  words  to  express  any 
particular  intention ;  the  intent  is  not  identical  with  any  phra- 
seology employed  to  express  it.  Any  language  is  but  a  sign, 
and  many  signs  may  be  used  to  signify  the  same  thing.  In 
statutes  the  sense  signified  is  the  law ;  the  letter  is  but  its 
servant  or  its  vehicle.  Language  is  so  copious  and  flexible 
that  when  general  words  are  used  there  is  an  absence  of  pre- 
cision, and  aU  words  and  collocations  of  words  admit  of  more 
than  one  interpretation,^  In  the  construction  of  remedial 
statutes,  while  the  meaning  of  words  is  not  ignored,  it  will  be 
subordinated  to  their  general  effect  in  combination  in  a  whole 
act  or  series  of  acts,  read  in  the  light  of  all  the  pertinent  facts 
of  every  nature  of  which  the  courts  take  judicial  notice.  Lil>- 
eral  construction  of  any  statute  consists  in  giving  the  words  a 
meaning  which  renders  it  most  effectual  to  accomplish  the  pur- 
pose or  fulfill  the  intent  which  it  plainh'  discloses.  For  this 
purpose  the  words  may  be  taken  in  their  fullest  and  most  com- 
prehensive sense.  Where  the  intent  of  the  act  is  manifest, 
particular  words  may  have  an  effect  quite  beyond  their  natu- 
ral signification  in  aid  of  that  intent.^     The  following  cases 

1  Tynan  v.  Walker,  35  CaL  634.  3  WDberf.    on  St   235 ;    Aveiy    v. 

2  See  Regina  v.  Skeen,  Bell,  C.  C.     Groton,  36  Conn.  304 ;  Smith  v.  Ste- 
184,  per  Pollock,  C.  B.  vans,  82  IlL  554 ;  Dean  aud  Chapter 


532  LIBERAL   CONSTEUCTION. 

appear  to  the  writer  to  fitly  illustrate  the  degree  of  elasticity 
of  statutes  which  are  to  be  liberally  construed :  An  Alabama 
statute  provided  that  "  All  actions  of  trespass  quare  clausum 
/regit,  and  actions  of  trespass  to  recover  damages  for  injuries 
to  personal  property,  may,  if  the  plaintiff  or  plaintiffs  die,  be 
revived  by  his  or  her  or  their  representatives  in  the  same  man- 
ner as  actions  upon  contract."     This  was  held  not  to  authorize 
the  representatives  to  bring  an  action  originally  for  such  torts, 
but  only  to  revive  actions  brought  by  plaintiffs  who  have  died. 
Eeasons  may  have  influenced  the  legislature  in  giving  a  rem- 
edy in  the  one  case  which  it  was  unwilling  to  extend  in  the 
other.    In  the  former  the  deceased  had  himself  elected  to  seek 
redress,  and  should  his  suit  abate  by  his  death  his  estate  would 
be  subjected  to  costs.    In  the  latter  he  had  brought  no  action, 
and  may  have  intended  to  waive  the  wrong.     "  These  consid- 
erations," say  the  court,  "  it  is  possible,  may  have  influenced 
the  legislature  in  thus  limiting  the  remedy.     Be  this  as  it 
may,  the  construction  [that  an  original  action  might  be  brought 
on  the  equity  of  the  statute]  cannot  be  given  to  it  unless  we 
go,  not  only  ultra  the  strict  letter,  but  contra  the  letter  also, 
which  is  inhibited  by  every  just  principle  of  construction."  ^  A 
provision  that  all  actions  against  sheriffs  and  coroners  upon 
any  Habflity  incurred  by  them  by  the  doing  of  any  act  in  their 
official  capacity,  or  by  the  omission  of  any  official  duty,  shall  be 
brought  within  three  years  after  the  cause  of  action  shall  have 
accrued,  though  construed  very  liberally,  is  held  not  to  apply 
to  actions  for  acts  done  merely  colore  but  not  mrtute  officii.- 
An  act  modified  the  common  law  with  regard  to  the  effect  of 
the  voluntary  discharge  of  a  defendant  from  arrest  on  a  judg- 
ment by  giving  the  plaintiff  a  remedy  by  further  execution  or 
oih.Q,v  process.     This  word  in  strictness  was  held  to  mean  only 
scire  facias;  but  as  the  statute  was  remedial,  it  should  be  con- 
strued to  include  an  action  of  debt  also.^ 

§  417.  When  the  scope  and  intention  of  an  act  are  ascertained 
by  all  the  aids  available,  words  whose  ordinary  acceptation  is 

of  York  V.  Middleburgh,  2  Y.  &  J.  Cogan,  2  Doug.   699,  706 ;   Houk  v. 

196 ;  Vigo's  Case,  21  WalL  648 ;  Turtle  Barthold,  73  Ind.  21. 

V.  Hartwell,  6  T.  R  at  p.  429 ;  Atclie-  '  Blakeney  v.  Blakeney,  6  Port  115. 

son  V.  Everitt,  1  Cowp.  at  p.  391 ;  State  2  Morris  v.  Van  Voast,  19  "Wend.  283. 

V.  Powers,  36    Conn.  77;   Hyde  v.  s  Simonton  v.  BarreU,  21  Wend.  363. 


LIBERAL   CONSTBUCTION. 


533 


limited  may  be  expanded  to  harmonize  with  the  purpose  of 
the  act.  This  interpretation  is  admissible  of  statutes  gener- 
ally, but  has  a  more  liberal  application  to  remedial  and  some 
other  statutes  which  are  liberally  construed.  It  is  applied  to 
every  case  within  the  object  of  the  act  if  it  can  reasonably 
be  brought  within  its  language.  Thus  in  Silver  v.  Ladd  '  the 
court  held  that  in  construing  a  benevolent  statute  enacted  to 
confer  a  public  benefit,  by  encouraging  citizens  to  settle  on  dis- 
tant portions  of  the  public  domain,  the  words  "  single  man  " 
may,  in  the  light  of  the  context  showing  the  scope  and-  purpose 
of  the  act,  bo  taken  in  a  general  sense  as  including  an  unmar- 
ried woman.2 


i7Waa319. 

2  "  Tliis  case  may  be  taken  as  an  il- 
lustration of  the  elasticity  of  words 
in  an  act  to  be  liberally  construed.  It 
explained  the  provisions  of  the  act 
of  congress  of  the  27th  of  September, 
1850,  commonly  called  the  Donation 
Act.  Millei-,  J.,  speaking  for  the 
whole  com-t,  said :  "  We  admit  the 
philological  criticism  that  the  words 
'  single  man '  and  '  married  man,' 
referring  to  the  conjugal  relation  of 
the  sexes,  do  not  ordinarily  include 
females ;  and  no  doubt  it  is  on  tliis 
critical  use  of  the  words  that  the  de- 
cision of  the  Oregon  com-t  is  mainly 
f oimded.  But  conceding  to  it  aU  the 
force  it  may  justly  claim,  we  are  of 
opinion  that  it  does  not  give  the  true 
meaning  of  the  act,  according  to  the 
intent  of  its  f ramers,  for  the  follow- 
ing reasons : 

"  1.  The  language  is  that  tliere  is 
hereby  granted  to  '  every  wliite  set- 
tler or  occupant  of  the  public  lands, 
above  the  age  of  eighteen  years,'  etc. 
This  is  intended  to  be  the  description 
of  the  class  of  persons  who  may  take, 
and,  if  not  otherwise  restricted,  will 
clearly  include  all  women  of  tliat  age 
as  well  as  men. 

'■  3.  It  is  only  in  prescribing  the 
quantity  of  land  to  be  taken  that  the 
restrictive  words  ai'e  used,  and  even 


then  the  words  are  capable  of  being 
construed  generically,  so  as  to  include 
both  sexes.  In  the  case  of  a  married 
man  it  is  clear  that  it  does  include  his 
wife. 

"  3.  The  evident  intention  to  give  to 
women  as  weU  as  men  is  sho\vn  by 
the  provision  that,  of  the  six  him- 
di-ed  and  forty  acres  gi-anted  to  mar- 
ried men,  one-half  shall  go  to  their 
wives,  and  be  set  apart  to  them  by 
the  surveyor  general,  and  shall  be 
held  in  their  own  right  Can  there  be 
any  reason  why  a  married  woman, 
who  has  the  care  and  protection  of  a 
husband,  and  who  is  incapable  of 
making  a  separate  settlement  and  cul- 
tivation, shaU  have  land  given  to  her 
own  use,  wliUe  the  improtected  fe- 
male, above  tlie  age  of  eighteen  years, 
who  makes  her  own  settlement  and 
cvdtivation.  shall  be  excluded? 

"  4.  But  a  comparison  of  the  mani- 
fest pui-pose  of  congress  and  the  lan- 
guage used  by  it,  in  section  4  of 
this  statute,  with  those  of  section  5, 
wUl  afford  gTOimds  for  rejecting  the 
interpretation  ckiimed  by  defendants 
wliich  are  almost  conclusive. 

"  The  fii-st  of  these  sections  applies, 
as  we  have  already  said,  to  tliat  meri- 
torious class  who  were  then  residing 
in  the  territory,  or  should  become 
residents  by  the    1st  of    December 


5U 


LIBERAL   CONSTRUCTION. 


§  lis.  An  act  which  authorized  justices  to  make  orders  in 
bastardy  proceedings  against  the  putative  father  of  the  bastard 
child  of  "  any  single  woman "  was  held  to  include  a  widow, 
for  the  description  did  not  mean  never  married ;  ^  it  included 
a  married  woman  living  apart  from  her  husband,  when  his  non- 
access  is  proved.  Lord  Denman,  referring  to  7  and  8  Yict., 
chapter  101,  said  in  Regina  v.  CoUingwood :  ^  "  The  language 
of  the  statute  applies  in  terms  only  to  single  women ;  so  did 
the  language  of  6  Geo.  II.,  chapter  31 ;  yet  Lord  EUenborough, 
and  the  whole  court  in  Hex  v.  Luffe,*  held  that  an  order  might 
be  made  on  the  putative  father  of  the  bastard  child  of  a  mar- 
ried woman,  who  was  to  be  considered  single  under  the  exist- 
ing circumstances  and  for  that  purpose."  Sergeant  Godson, 
arguing  for  that  construction,  remarked  that  "  the  adultery 


thereafter.  It  extends  to  persons  not 
citizens  of  the  United  States,  to  per- 
sons only  eighteen  years  old,  and  it 
gives  to  each  a  half  section  of  land. 
The  fifth  section  makes  a  donation  of 
half  tliis  amount,  and  is  restricted  to 
citizens  of  the  United  States,  or  those 
who  have  declared  their  intention  to 
become  citizens,  and  to  persons  over 
t^venty-one  years  of  age.  But  what 
is  most  expressive  in  regard  to  the 
matter  under  discussion  is,  that  the 
very  first  line  of  that  section,  in 
which  the  class  of  donees  is  described, 
uses  the  words  '  white  male  citizens 
of  the  United  States.'  Now  when 
we  reflect  on  the  class  of  persons  in- 
tended to  be  rewarded  in  the  fourth 
section,  and  see  that  words  were  used 
which  included  haK-breeds,  foreign- 
ei-s,  infants  over  eighteen,  and  wliich 
provided  expressly  for  both  sexes 
when  married,  and  used  words  capa- 
ble of  that  construction  in  cases  of 
unmarried  i^ersons,  and  observe  that 
in  the  next  section,  where  they  in- 
tend to  be  more  restrictive,  in  refer- 
ence to  quantity  of  land,  to  age  of 
donee,  citizenship,  etc.,  they  use  apt 
words  to  express  tliis  restriction  and 
then  use  the  words  '  white  males '  In 


reference  to  sex  we  are  forced  to  the 
conclusion  that  they  did  not  intend, 
in  section  4,  the  same  limitation 
in  regard  to  sex  wliich  they  so  clearly 
expressed  in  section  5.  The  con- 
trast in  the  language  used  in  regard 
to  the  sex  of  the  donees  in  the  two 
sections  is  sustained  throughout  by 
the  other  conti'asts  in  the  age  and 
character  of  the  donees,  and  the 
quantity  of  land  gi-anted."  The  con- 
text in  tliis  case  shows  that  the  donor 
did  not  intend  to  limit  the  donation 
to  males;  hence  the  words  "single 
man"  and  "married  man"  were 
brought  into  harmony  with  that  iu- 
tention  by  construing  them  in  a  ge- 
neric sense. 

In  Reg.  V.  Wymondham,  2  Q.  B.  541, 
in  consti'uing  a  statute  relative  to 
the  settlement  of  a  pauper,  which  is  a 
statute  to  be  strictly  construed,  the 
judges  were  not  willing  to  construe 
"single  and  unmarried"  persons  as 
meaning  also  "  not  having  childi-en  " 
or  "  never  married." 

1  Reg.  V.  Wymondliam,  2  Q.  B.  541 ; 
Antony  v.  Cardenham,  Fortes.  309. 

2  12  Q.  B.  681. 

3  8  East,  193. 


LIBERAL   CONSTRUCTION.  535 

of  the  wife  places  her  in  the  position  of  a  single  woman." 
Lord  Campbell,  C.  J.,  said,  in Kegina  v.  Pilkingtoii :  ^  "It  would 
be  strange  if  one  class  of  bastards,  though  small,  were  left  en- 
tiiely  destitute,  and  there  were  no  liability  in  the  putative 
father."  A  statute  of  Alabama  provided  that,  "  For  any  breach 
of  any  official  bond  or  undertaking  of  any  officer  of  this  state, 
executor,  administrator  or  guardian,  or  of  any  bond  or  under- 
taking given  in  an  official  capacity  to  the  state  of  Alabama, 
or  any  officer  thereof,  the  person  aggrieved  may  sue  in  his 
own  name,  assigning  the  appropriate  breach."  -  This  statute 
was  declared  remedial.  It  was  intended  that  suits  on  official 
and  the  other  bonds  mentioned  should  be  prosecuted  by  the 
party  really  aggrieved,  in  his  own  name,  dispensing  with  the 
mere  form,  which  obedience  to  the  rule  of  the  common  law 
required,  of  introducing  on  the  record,  as  nominal  plaintiff, 
the  obligee  of  the  bond,  who  had  no  right  or  interest  involved, 
and  who  could  not  control  the  suit  —  who  was  not  answerable 
for  costs,  and  could  not  release  or  discharge  the  recovery. 
The  bond  of  a  county  treasurer,  though  a  county  and  not  a 
state  officer,  was  not  within  the  words  of  the  section,  if  taken 
in  a  narrow  or  strict  sense.  But  because  such  a  bond,  when  the 
subject  of  a  suit  by  an  individual  aggrieved  by  the  county  treas- 
urer's official  delinquency,  is  as  much  within  the  mischief  the 
section  was  intended  to  correct  as  other  bonds  coming  within 
its  letter,  it  is  not  a  strained  construction  to  read  the  statute 
as  embracing  it  and  the  bond  of  any  public  officer.'  A  statute 
of  the  same  state  provided  that,  "  Whenever  any  officer,  re- 
quired by  law  to  give  an  official  bond,  acts  under  a  bond  which 
is  not  in  the  penalty,  payable  and  conditioned  as  prescribed 
by  law,  such  bond  is  not  void,  but  stands  in  the  place  of  the 
official  bond,  subject,  on  its  condition  being  broken,  to  aU  the 
remedies  which  the  person  aggrieved  might  have  maintained 
upon  the  official  bond  of  such  officer,  executed,  approved  and 
filed  according  to  law."  This  section  was  held  to  apply  to 
bonds  which  were  in  the  penalty,  payable  and  conditioned  as 
prescribed  by  law,  but  which  were  not  executed,  approved  and 
filed  within  the  time  limited  thereby.* 

12  E.  &  B.  546.  ^Sprowl  v.  Lawrence,  33  Ala  685. 

2 Rev.  Code  of  1867,  §  2553.  lu  tliis  case  tlie  com-t  say :  "An  ex- 

3  Morrow  v.  Wood,  56  Ala.  1,  5,  6 ;  amination  of  the  various  provisions 

Sprowl  V.  Lawrence,  33  id,  674.  of  the  code  in  reference  to  the  bonds 


536 


LIBERAL   CONSTEUCTION. 


§  419.  Where  the  words  of  a  statute  prescribing  compensa- 
tion to  a  pubUc  officer  are  loose  and  obscure  and  admit  of  two 


of  public  officers  will  satisfy  any  one 
of  the  studious  solicitude  with  which 
the  legislatm-e  has  sought  to  afford 
the  most  ample  protection  to  all  per- 
sons interested  in  the  performance  by 
such  officers  of  tlieii-  official  duties. 
The  section  we  are  considering  is  a  part 
of  the  legislation  designed  to  effect 
this  general  object,  and  it  is  our  duty 
to  put  upon  it  such  a  consti"uction  as 
will  harmonize  with  the  substance 
and  spirit  of  tlie  text  to  wliich  it  be- 
longs. It  is  a  remedial  statute,  and 
we  must  construe  it  largely  and  ben- 
eficially so  as  to  suppress  the  miscliief 
and  advance  the  remedy ;  or,  in  tlie 
language  of  Lord  Coke,  so  as  '  to  add 
force  and  hfe  to  the  cm-e  and  rem- 
edy, according  to  the  true  intent  of 
the  makers  of  the  act,  2^^o  bono  pub- 
lico: Hayden's  Case,  3  Rep.  7 ;  Sedg- 
wick on  St,  359-60.  It  must  be  ad- 
mitted that  the  words  of  tliis  section 
are  not  as  clear  and  precise  as  they 
might  be ;  and  it  is  a  well-settled  iiile 
that,  when  the  words  are  not  precise 
and  clear,  such  consti'uction  will  be 
adopted  as  shall  appear  ihe  most  rea- 
sonable and  best  suited  to  accompUsh 
the  object  of  the  statute ;  and  a  con- 
struction wliich  would  lead  to  an  ab- 
surdity ought  to  be  rejected. 

"  Viewing  section  132  (quoted  m  the 
text)  in  the  hght  of  these  rules,  we 
cannot  assent  to  the  construction  of 
it  urged  by  the  counsel  for  tlie  appel- 
lee. The  result  to  which  that  con- 
stiTXCtion  leads  demonstrates,  in  our 
opinion,  its  fallacy.  By  section  120 
it  is  declared  that  the  bond  of  any 
officer  which  is  not  in  the  penalty, 
and  payable  and  conditioned  as  pre- 
scribed by  law,  'should  not  be  ap- 
proved,' and  that  the  officer  approv- 
ing the  same  'neglects  his  duty,' 
Section  132  is  evidently  based  on  the 


supposition  that  bouds  wliich  were 
not  in  the  penalty,  and  payable  and 
conditioned  as  prescribed,  would,  or 
to  say  the  least  might,  not  be  ap- 
proved and  filed;  and  tliis  for  the 
simple  reason  that  the  officers  in- 
trusted with  the  authority  to  approve 
and  ffie  are  advised  by  an  emphatic 
admonition  from  the  legislature  that 
such  bonds  '  should  not  be  approved ' 
and  that  no  bond  shall  be  filed  unless 
first  approved.      Code,   g§  120,   126, 
Hence  the  language  is  that  such  a 
bond,  if  the  officer  executing  it '  acts 
under  it,^  shaU  be  subject  to  all  the 
remedies  which  could  be  maintained 
'  on  tlie  official  bond  of  such  officer, 
executed,  approved  and  filed  accord- 
ing to  law:    These  last  words  seem  to 
imply  that  a  bond  wliich  did  not  con- 
form to  the  statutory  requirements 
as  to  penalty,  payee  and  condition 
would  not  be  executed,  approved  or 
filed  according  to  law.     And  yet,  if 
the  sheriff  acts  under  such  a  bond,-  it 
stands  in  the  place  of  and  is  subject 
to  aU  the  remedies  wluch  could  be 
maintained  upon  the  official  bond  of 
such  officer,  executed  in  all  respects 
in  strict  conformitj^  to  the  statute. 
Hence  we  conclude  that,  so  far  as  the 
operation  of  section  132  is  concerned, 
it  makes  no  difference  whether  the 
bonds  there  spoken  of  have  or  have 
not  been  approved  and  filed.    The 
bonds    referred  to    in    that    section 
could  not  be  properly  approved  or 
ffied ;  for  the  law  expressly  declares 
that  bonds  thus  defective  should  not 
be  approved,  and  that  the  officer  who 
does  approve  them  violates  7ns  duty. 
If  a  bond  is  approved  and  filed  when 
it  should  not  have  been,  and  if  the 
officer  who  approves  and  files  it  vio- 
lates his  duty  in  doing  so,  the  act  of 
approval  and  filing,  it  would  seem. 


UBEKAL   CONSTRUCTION.  537 

interpretations,  they  should  be  construed  in  favor  of  the  officer. 
This  was  held  by  Story,  J.,  in  the  construction  of  a  statute  au- 
thorizing the  secretary  of  the  treasury  to  limit  and  lix  the 
number  and  compensation,  among  others,  of  deputy  collectors, 
"vvith  a  proviso  that  no  such  deputy,  in  certain  named  districts, 
should  receive  more  than  $1,000,  "  nor  any  such  other  deputy 
more  than  $1,000  for  any  services  he  may  perform  for  the 
United  States  in  any  office  or  capacity,"  That  eminent  judge 
and  jurist  said  the  last  clause  was  obscurely  drawn,  and, "  after 
weighing  the  subject  with  a  good  deal  of  care,  I  have  come  to 
the  conclusion  that  the  true  intent  and  meaning  of  the  clause 
is  to  Umit  the  emoluments  of  the  deputy  collector  in  that  office 
to  the  sum  specilied,  and  to  make  no  allowance  to  him  on  ac- 
count of  any  incidental  services  he  may  perform  or  emoluments 
he  may  receive  beyond  that  sum ;  and  that  it  was  not  intended 
to  say  that  if  he  actually  performed  the  duties  or  services  of 
any  other  independent  office,  such  as  inspector,  in  any  of  the 
non-enumerated  ports,  he  was  not  entitled  to  receive  the  emol- 
uments thereof.  In  short,  I  read  the  language  as  if  it  were 
'  in  any  such  office  or  capacity.'  "  '  A  Missouri  statute  was : 
"  The  county  in  which  the  indictment  is  found  shall  pay  the 
costs  in  all  cases  where  the  defendant  is  sentenced  to  imprison- 
ment in  the  county  jail,  and  to  pay  a  fine,  or  either  of  these 
modes  of  punishment,  and  is  unable  to  pay  them."  '^  A  prose- 
cution for  an  offense  so  punishable  was  dismissed  by  an  agree- 
ment between  the  circuit  attorney  and  the  defendant,  with  the 
consent  of  the  court,  at  the  defendant's  cost.  The  costs  were 
taxed  and  an  execution  issued  for  them.  It  was  held  that  the 
county  was  liable  not  only  for  the  costs  taxed,  but  also  for  the 

cannot  be  otherwise  than  nugatory  and  which  does  conform  to  aU  the 

as  such,  though  it  would  doubtless  be  requirements  of  the  law  except  the 

convenient  and  plenary  proof  of  the  last  two,  approval  and  tiling.    To  hold 

dehvery  of  the  bond  by  the  obUgors.  otherwise  would  be  to  maintain  the 

This  section,  therefore,  in  our  judg-  paradox  that  the  validity  of  the  bond 

ment,  applies  to  a  bond  which  does  is  eulianced  by  its  increased  iiuper- 

not  conform  to  any  of  the  statutoiy  fections  —  that  a  total  is  less  hurtful 

requirements,  either  as  to  its  penalty,  than  a  partial  departure  from  the 

payee,  conthtions,  approval  or  filing,  statute,  and  that  an  insti'ument  in 

provided  the  officer  executing  it  has  fact  gets  better  as  it  grows  worse." 

acted  under  it     Much  more  clearly  •  United  States  v.  Morse,  3  Story,  87. 

does  it  apply  to  a  bond  a\  liich  the  2  Gen.  St  ch.  219,  g  3. 
officer  executing  it  has  acted  vmder. 


538  LIBERAL   CONSTKUCTION. 

costs  on  the  execution.^  The  statute  of  38  Geo.  III.,  chapter 
ST,  section  1,  says  that  "  at  the  expiration  of  twelve  calendar 
months  from  the  death  of  a  testator,  if  the  executor  to  whom 
probate  of  the  will  has  been  granted  is  then  residing  out  of  the 
jurisdiction  of  his  majesty's  courts  of  law  and  equity,  it  shall 
be  lawful  to  make  a  grant  of  administration  to  the  persons  in- 
terested." An  executor  was  residing  in  the  jurisdiction  at  the 
expiration  of  the  twelve  calendar  months,  and  continued  so  to 
reside  for  fom*  years.  He  then  removed  out  of  the  jurisdiction, 
and  at  the  date  of  the  apphcation  was  still  residing  abroad. 
The  question  was  whether  the  statute  apphed  to  him.  It  was 
held  that  it  did.  The  statute  was  held  remedial  to  enable 
persons  interested  in  the  estate  to  enforce  their  claims.  Lord 
Penzance  said :  "  My  difficulty  arose  on  reading  the  words  '  then 
residing ; '  but  it  was  pointed  out  to  me  that  if  I  restricted  the 
operation  of  the  statute  to  the  case  of  the  executor  residing 
out  of  the  jurisdiction  at  the  expiration  of  twelve  months,  the 
intention  of  the  statute  could  hardly  be  worked  out."  ^ 

In  Evans  v.  Jones*  the  court  of  great  session  was  abol- 
ished, and  a  statute  provided  that  "the  court  of  common 
pleas  shall  have  the  like  power  and  authority  to  amend  the 

1  State  V.  Buchanan  Co.  Ct.  41  Mo.  statute  of  1  Rich.  II.,  ch.  13,  which  is 
254.  altogether  sUent  about  sheriffs  and 

2  In  the  Goods  of  Ruddy,  L.  R.  2  P.  gaolers,  and  mentions  only  the  warden 
&  D.  330.  of  the  Fleet.   So  the  statute  of  circum- 

39  Bing.  311.    In  this  case  a  lib-  specie  agra^iis  (13  Edw.  I.),  which  men- 

eial  construction  was  allowed  on  the  tions  only  the  Bishop  of  Norwich, 

authority    of    cases    decided    upon  has  been  always  extended  to  include 

the  equity  of  statutes.     "Many  in-  aU  other  bishops.    2  Inst.  487.    The 

stances,"  says  the  Lord  Chief  Jus-  statute    of    Westminster  I  gives  a 

tice,  "  occur  in  the  books  of  simUar  remedy  where    '  outi-ageous    toU  is 

constiTiction  of  statutes.    The  9  Ricli.  taken ;'  by  consti'uction  of  law  that 

II.,   ch.   3,  gives  a  writ  of  error  to  remedy  apphes  either  where  a  rea- 

liim  in  reversion,  if  a  tenant  for  life  sonable  toU  is  due  and  excessive  toU 

lose  in  a  pi-ecipe;  but  it  was  resolved,  is  taken,  and  when  no  toU  at  all  is 

that  though  the  statute  speaks  only  due,  and  yet  toU  is  unjustly  usurped, 

of    reversions,    yet    remainders    are  2  Inst.  220.    In  these  and  many  other 

also  taken  to  be  withua  the  purview  instances,  the  particular  exijression 

thereof.     Winchester's  Case,  3  Rep.  4.  used  in  the  statute  is  looked  upon 

The  action  of  debt  for    an  escape,  only  as  an  example  of  other  cases 

which  is  against  every  sheriff  and  lying  witliin  the  same  mischief,  and, 

gaoler  where  the  piisoner  escapes  out  therefore,  caUing  for  the  same  rem- 

of  execution,  is  grounded  upon  the  edy." 


LIBERAL   CONSTRUCTION.  539 

records  of  fines  and  recoveries  passed  heretofore  in  any  of  the 
courts  abohshed  by  this  act,  as  if  the  same  had  been  levied, 
suffered  or  had  in  the  court  of  common  pleas."  On  this  statute 
the  question  arose  whether,  under  tlie  power  to  amende  an  en 
tire  record  could  be  made.  Tindal,  C.  J.,  said :  "We  think  this 
provision  of  the  statute  is  remedial,  and,  consequently,  tliat  it 
should  receive,  not  a  strict,  but  so  far  a  liberal,  construction  as 
will  meet  and  remove  the  difficulty  w^hich  the  act  itself  has 
created." 

An  insolvent  act  invalidated  voluntary  conveyances  made 
by  insolvents  "  within  three  months  before  the  commencement 
of  the  imprisonment."  That  language  would  exclude  the  time 
of  imprisonment ;  so  that,  taken  literally,  conveyances  during 
such  time  would  not  be  invalidated.  But,  being  construed  lib- 
erally to  carry  out  the  obvious  intention  of  the  act,  it  was 
interpreted  as  if  the  words  had  been  "  wdthin  the  period  com- 
mencing three  months  before  the  imprisonment."  ' 

§  420.  It  was  provided  by  a  statute  of  Georgia  that,  "  when 
any  guardian,  executor  or  administrator  chargeable  with  the 
estate  of  any  orjyJian  or  deceased  person  to  him,  her  or  them 
committed,  shall  die  so  chargeable,  his,  her  or  their  executors 
or  administrators  shall  be  compellable  to  pay  out  of  his,  her 
or  their  estate  so  much  as  shall  appear  to  be  due  to  the  estate 
of  such  orphan  or  deceased  person,  before  any  other  debt  of 
such  testator  or  intestate."  -  The  subject-matter  of  this  stat- 
ute is  the  estate  or  property  of  minors,  and  the  purpose  or 
motive  of  the  legislature  w^as  its  security  and  protection  in  the 
hands  of  a  guardian  at  his  death.  Hence  the  word  orphan 
included  a  child  having  separate  property,  though  his  parents 
w^ere  living.  The  usual  popular  meaning  of  w^ords  is  ordinarily 
to  be  adopted,  yet  not  necessarily  nor  universally.  They  are 
to  be  considered  as  having  regard  to  the  subject-matter ;  that 
is  presumed  to  be  always  in  the  eye  of  the  legislator.  Hence 
when  a  word  or  w^ords  are  of  doubtful  meaning,  in  the  api)li- 
cation  of  a  statute,  the  subject-matter  may  dissolve  doubts  and 
fix  their  meaning  so  as  to  make  it  harmonious  with  the  object  of 
the  legislature.  "  Looking  to  the  subject-matter  of  this  law," 
say  the  court  in  Eagiand  v.  The  Justices,  etc.,'  "  the  estates 

1  Becke  v.  Smith,  2  K  &  W.  198.  3  lo  Ga,  65,  71. 

2  Cobb's  New  Dig.  288. 


540  LIBERAL   CONSTETJCTION. 

of  minors,  and  looking  to  the  reason  and  object  of  the  law, 
the  protection  of  these  estates,  it  will  be  impossible  to  conclude 
that  when  the  legislature  speaks  of  an  orphan  it  meant  to  des- 
ignate alone  a  minor  whose  parents  are  dead."  The  follow- 
ing case  shows  a  special  application  and  use  of  the  word  loan: 
A  township  being  unable  to  procure  volunteers  under  a  bounty 
law  for  $300,  the  citizens  voluntarily  advanced  money  to  pay 
bounties  beyond  that  amount,  with  the  understanding  that  it 
was  to  be  repaid  when  a  law  should  be  passed  authorizing 
taxation  to  repay  them.  An  act  was  subsequently  passed  to 
repay  "  all  loans  made  in  good  faith,"  and  it  was  held  that 
this  law  authorized  the  repayment  of  the  sums  so  advanced. 
The  loans  contemplated  were  not  loans  in  a  legal  sense ;  they 
had  reference  only  to  claims  upon  the  conscience  and  moral 
sense  of  the  community  relieved  thereby.'  A  right  given  by 
statute  to  "  the  owner  or  owners  of  land  "  to  redeem  land  sold 
for  taxes  is  to  receive  a  liberal  and  benign  construction  in 
favor  of  those  whose  estates  will  be  otherwise  divested,  es- 
pecially where  the  time  allowed  is  short,  and  ample  indemnity 
is  given  to  the  purchaser.  It  was  so  held  in  Dubois  v.  Hep- 
burn.2  u  ^]^g  purchaser,"  say  the  court,  "  suffers  no  loss ;  he 
buys  with  full  knowledge  that  his  title  cannot  be  absolute  for 
two  years ;  if  it  is  defeated  by  redemption,  it  reverts  to  the  law- 
ful proprietors.  It  would,  therefore,  seem  not  to  be  necessary 
for  the  purposes  of  justice,  or  to  effectuate  the  objects  of  the 
law,  that  the  right  to  redeem  should  not  be  narrowed  down  by 
a  strict  construction."  It  was  held  that  "  any  right  which  in 
law  or  equity  amounts  to  an  ownership  in  the  land ;  any  right 
of  entry  upon  it,  to  its  possession  or  enjoyment,  or  any  part  of 
it,  which  can  be  deemed  an  estate  in  it,  makes  the  person  the 
owner,  so  far  as  it  is  necessary  to  give  him  the  right  to  re- 
deem." ^  In  construing  the  redemption  laws  the  courts  hold 
that  the  word  owner  is  a  generic  term,  which  embraces  the 
different  species  of  interest  which  may  be  carved  out  of  a 
fee-simple  estate.^     Statutes  providing  certain  exemptions  from 

1  Weistcr  v.  Hade,  52  Pa.  St.  474.  terson  v.  Beasly,  3  Ohio,  301 ;  Patter- 
See  Miller  v.  Grandy,  13  Mich.  540 ;  son  v.  Brindle,  9  Watts,  98 ;  Jones  v. 
People  V.  Supervisor,  14  id,  336.  Collins,  16  Wis.  594,  605 ;  Wmchester 

2 10  Pet.  1, -23.  V.  Cam,   1   Rob.   (La.)  421;  Karr  v. 

3  Corbett  v.  Nutt,  10  WaU.  464,  474 ;  Washburn,  56  Wis.  303. 
Chapin  v.  Curtenius,  15  IlL  427 ;  Mas-       <  BlackweU  on  Tax  Titles,  margi- 


LIBERAL   CONSTETTCTION.  541 

tolls  on  turnpikes  are  held  to  be  liberally  construed  in  favor 
of  agriculture.  It  was  enacted  that  no  toll  should  be  de- 
manded for  any  horse,  beast  or  other  cattle  or  carriage  em- 
}5loyed  in  carrying,  among  other  things,  "  fodder  for  cattle." 
"No  doubt,"  said  Cockburn,  C.  J.,  "  there  is  some  difficulty  at 
first  sight  in  saying  that  barley  in  the  course  of  transit  to  a 
mill  for  the  purpose  of  being  ground  into  meal,  to  be  after- 
wards eaten  by  cattle,  is  already  fodder  for  cattle ;  but,  giving 
a  fair  and  Hberal  construction  to  the  words  of  the  statute,  I 
think  that  everything  which  is  ultimately  destined  to  be  used 
as  food  for  cattle  is  fodder  for  them,  although  it  may  not 
have  gone  through  the  final  process  which  will  make  it  such."  • 
So  a  provision  exempting  carts  loaded  with  manure  was  held 
to  exempt  them  from  toll  if  they  were  going  empty  to  fetch 
manure.'^  A  "  yoke  "  of  oxen  was  held  not  necessarily  to  mean 
cattle  broke  to  work.  If  they  are  intended  by  the  owner  for 
use  as  work  cattle,  and  are  old  enough,  they  are  a  yoke  within 
the  exemption  laws.'  Under  a  statute  which  authorizes  an 
order  for  inspection  of  documents  on  application  of  either  party 
upon  an  affidavit  by  such  party,  the  affidavit  must  be  made  by 
the  party  himself.*  But  if  a  corporation  is  a  party  the  order 
may  be  granted  upon  the  affidavit  of  their  attorney,  it  being 
impossible  for  them  literally  to  comply  with  the  terms  of  the 
statute,  and  it  being  the  intention  of  the  legislature  that  its 
benefit  should  be  extended  to  all  suitors.* 

§  421.  An  English  statute  relative  to  parish  rates,  which  in- 
cluded corporations  as  rate  payers,  gave  a  right  of  appeal  to 
any  person  or  persons  aggrieved  by  any  rate,  and  the  appel- 
lant was  required  to  enter  into  a  recognizance  with  two  sure- 
ties. The  court  would  not  exclude  corporations  from  being 
liable  for  rates,  nor  deny  their  right  of  appeal  because  they 
could  not  enter  into  a  recognizance.     They  had  the  right  of 

nal  p.  423 ;  Alter  v.  Shepherd,  27  La.  541.    But  a  colt  four  months  old  and 

Ann.  207.  its  dam  do  not  make  a  span  of  horses. 

1  Clements  v.  Smith,  3  K  &  R  23a  Ames  v.  ]\Iartin,  G  Wis.  3G1. 

2  HaiTison  V,  James,  2  Cliitty,  547.        <  Herschfeld  v.   Clarke,   11   Exch. 

3  Mallory  v.  Beny,  16  Kan.  293.  A  712 ;  Christophei-son  v.  Lotinga,  15 
pair  of  t\vo-year-old  steers,  suitable  C.  B.  (N.  S.)  809. 

for  doing  light  work,  are  exempt  un-       8  Kingsford  v.  Great  W.  R'y  Ca  16 
der  a  statute  exempting  a  pair  of    C  B.  (N.  S.)  761, 
oxen.      Berg  v.  Baldwin,   31   Miuu. 


542  LIBEKAL   CONSTRUCTION. 

appeal  if  they  were  persons  capable  of  being  aggrieved,  and 
the  provision  requiring  a  recognizance  applied  only  to  those 
who  were  capable  of  entering  into  it.  A  doubt,  however,  was 
suggested  that  a  corporation  could  enter  into  a  recognizance 
by  appointing  an  attorney  for  that  purpose.^  Littledale,  J., 
said:  "Where  an  act  of  parliament  directs  a  thing  to  be  done 
which  it  is  impossible  for  a  corporation  to  do,  but  which  other 
persons  may  do,  and  another  act  which  a  corporation  as  well 
as  others  can  do,  then  the  corporation  will  be  excused  fi^om 
doing  the  thing  which  it  cannot  do,  and  will  be  compelled  to 
do  the  act  which  it  is  capable  of  doing.  Assuming,  therefore, 
that  a  corporation  cannot  of  itself  enter  into  a  recognizance, 
still  its  sureties  may ;  and  I  think,  therefore,  that  a  corpora- 
tion might  satisfy  this  clause  by  procuring  sureties  to  enter 
into  such  recognizance."  '^ 

§  422.  Statutes  exempting  property  from  execution  are  in 
many  states,  if  not  generally,  construed  liberally.^  Sales  of 
land  on  execution  are  statutory,  and  hence  exemption  of  home- 
steads is  not  in  derogation  of  any  common-law  right.  They 
are  humane,  salutary  as  a  factor  in  public  economy,  and  gen- 
erally construed  liberally.*  It  has  been  held  that  to  consti- 
tute a  family  within  their  meaning  the  relation  of  parent 
and  child  or  that  of  husband  and  wife  must  exist ;  there  must 
be  a  condition  of  dependence  on  the  one  or  the  other  of 
these  relations;  but  it  is  not  necessary  that  all  the  dependents 
should  live  under  the  same  roof  or  that  the  family  should  live 
too-ether ;  it  is  the  relation  and  the  dependence  on  that  rela- 
tion, not  the  aggregation  of  the  individuals,  that  constitutes 
the  family .5    Under  a  provision  exempting  "  all  tools  and  im- 

1  Cortis  V.  Kent  Water  Works  Co.  5  SaUee  v.  Waters,  17  Ala.  483,  488 ; 
7  B.  &  C.  314  Allen  v.  Manasse,  4  id  554 ;  Canti-ell 

2  Id. ;  State  v.  Morris  Canal,  etc.  Co.  v.  Conner,  51  How.  Pr.  45 ;  Garaty  v. 
13  N.  J.  L.  192.  Du  Bose,  5  S.  C.  493 ;  Calhoun  v.  ]\Ic- 

3  Thompson  on  Homesteads  and  Lendon,  42Ga.405;  Nealv.Sawyer,60 
Exemptions,  §  4 ;  Davis  v.  Humplirey,  Ga,  352 ;  Dendy  v.  Gamble,  64  id.  528. 
22  Iowa,  137 ;  Charless  v.  Lamberson,  In  the  Homestead  Cases,  31  Tex.  677, 
1  id-  435;  Comstock  v.  Bechtel,  63  Lindsay,  J.,  says :  "What  constitutes 
Wis.  656;  Bmzel  v.  Grogan,  67  id.  a  family?  Lexicographers,  from 
;^47_  whom  in  our  hteraiy  education  we 

*  Thompson  on  Homesteads  and  Ex-  derive  all  our  knowledge  of  the  cor- 
emptions,  g  4  and  note ;  45  Am.  Dec.  rect  import  of  words,  tell  us  that  the 
252.  word  '  family,'  in  its  origin,  meant 


LIBERAL   CONSTKUCTION. 


543 


plements  of  trade"  it  has  been  held  that  the  press  and  type  of 
a  practical  printer,  which  are  necessarily  used  by  him  and  his 
journeymen  in  the  publication  of  a  weekly  newspaper,  were 
exempt  under  that  term.^ 

§  423.  A  statute  of  Wisconsin  provided  that  on  a  writ  of  re- 
plevin from  a  justice's  court  the  value  of  the  property  "  shall 
be  assessed  according  to  the  oath  of  one  or  more -credible,  dis- 
interested persons  whom  the  officer  shall  swear  truly  to  assess 
the  value  thereof;"  and  that  if  on  the  return  of  any  Avrit  of 
replevin  it  shall  appear  that  the  value  of  the  goods  and  chattels 
replevied  shall  have  been  assessed  by  the  jury  to  be  of  greater 
value  than  the  amount  of  which  the  justice  has  jurisdiction, 
then  the  justice  shall  certify  the  case  to  a  superior  court.  The 
"  jury "  here  mentioned  was  construed  to  mean  not  the  jury 
called  to  try  the  case,  though  its  ordinary  meaning,  but  the 
"  one  or  more  credible,  disinterested  persons  "  to  be  sworn  by 


Bervants ;  that  this  was  the  signiiica- 
tion  of  the  primitive  word.  It  now, 
however,  has  a  more  comprehensive 
meaning  and  embraces  a  collective 
body  of  persons  living  together  in  one 
house,  or  within  the  curtilage,  in  legal 
phi'ase.  This  may  be  assumed  as  the 
generic  description  of  a  family.  It 
may,  and  no  doubt  does,  have  many 
specific  senses  in  which  it  is  often 
nsed.  arising  from  the  paucity  of  our 
own  as  well  as  of  all  other  languages. 
Examining  and  criticising  the  word 
in  all  its  specific  uses  and  appropria- 
tions, it  will  be  most  obvious  that  it 
was  in  none  of  these  specific  senses 
that  the  term  '  family '  was  used  in  the 
constitution.  Its  use  in  such  a  sense 
would  have  been  objectless  and  nuga- 
tory, because  it  would  be  wholly  im- 
practicable in  its  application  to  the 
civil  affairs  of  mankind.  It  was  most 
certainly  used  in  its  generic  sense, 
embracing  a  household  composed  of 
parents  and  children  or  other  rela- 
tives, or  domestics  and  servants ;  in 
short,  every  collective  body  of  per- 
sons living  together  within  the  same 
cui'tUage,  subsisting  in  common,  di- 


recting their  attention  to  a  common 
object — the  promotion  of  their  mutual 
interests  and  social  happiness.  These 
must  have  been  the  characteristics  of 
the  'family'  contemplated  by  the 
f ramers  of  the  constitution  in  engraft- 
ing this  provision  upon  it  It  is,  be- 
sides, the  most  popular  acceptation  of 
the  word,  and  is  more  fully  in  unison 
with  the  beneficent  conception  of 
the  political  power  of  the  state  m 
making  so  humane  and  so  wise  a 
concession  as  that  of  the  inviolability 
of  a  homestead  from  all  invasion 
by  legal  process." 

'  Sallee  v.  Waters,  supra;  Patten  v. 
Smith,  4  Conn.  450.  But  probably  by 
a  weight  of  authority,  where  there  are 
several  men  employed  in  their  use, 
they  are  not  within  the  exemption. 
Buckingham  v.  Billings,  13  Mass.  82 ; 
Spooner  v.  Fletcher,  3  Vt  133 ;  Dan- 
forth  V.  Woodward,  10  Pick.  423.  See 
as  to  analogies,  Batchelder  v.  Shap- 
leigh,  10  Me.  135 ;  Kilburu  v.  Dem- 
ming,  2  Vt.  404 ;  Ford  v.  Johnson.  34 
Barb.  364 ;  Meyer  v.  Meyer,  23  Iowa, 
375. 


0-ii  LIBERAL   CONSTRUCTION. 

the  officer ;  for  in  construing  statutes  particular  words  ought 
not  to  be  permitted  to  control  the  evident  meaning  of  the 
context.^     The  Enghsh  statute  of  mortmain  in  terms  forbade 
disposition  of  land  to  charitie%  by  other  means  than  a  deed 
executed  a  year  before  the  grantor's  death,  and  hence  it  was 
claimed,  but  without  avail,  that  the  statute  did  not  apply  to 
copyholds.     "  If  it  were  perfectly  clear,"  say  the  court,  "  that 
it  was  impossible  for  the  mode  of  conveyance  pointed  out  by 
the  statute  to  be  adopted  in  the  case  of  copyhold,  the  only 
consequence  that  would  follow  would  be  that  the  statute  would 
absolutely  prohibit  any  conveyance  of  copyhold  to  charitable 
uses.     But  it  would  by  no  means  be  a  legitimate  consequence 
that  copyhold  lands  could  lawfully  be  conveyed  without  the 
formalities  required  by  that  act.     The  act  was  passed  for  the 
sake  of  pubhc  policy  and  to  prevent  persons  from  conveying 
their  lands  to  charitable  uses  in  a  secret  manner  at  or  near  to 
the  time  of  their  death."     It  was  suggested  by  the  court  that, 
"  admitting  that  there  could  not  be  an  operative  bargain  and 
sale  [in  case  of  copyhold],  still  the  parties  might  at  least  have 
attained  the  object  of  notoriety  by  executing  a  deed  declaring 
the  uses  of  the  surrender  in  the  mode  required  by  the  stat- 
ute." ^  In  Maryland,  in  addition  to  the  ordinary  bonds  of  exec- 
utors, a  statute  provided  for  a  bond  on  the  giving  of  which 
they  were  relieved  from  exhibiting  any  inventory  or  account. 
This  bond  was  conditioned  for  paying  all  just  debts  of  and 
claims  against  the  deceased,  and  all  damages  which  might  be 
recovered  against  him  as  executor,  and  also  all  legacies  be- 
queathed by  the  will.''    All  actions  upon  administration  and 
testamentary  bonds  were  required  by  the  statute  of  limitations 
to  be  brought  within  twelve  years  after  the  giving  of  the  said 
bonds  and  not  after.     It  was  held  that  the  bond  so  provided 
for  was  a  testamentary  bond  to  which  the  limitation  applied, 
though  not  provided  for  until  after  the  enactment  of  the  lim- 
itation law.* 

§  424-.  In  several  cases  where  suit  has  been  brought  within 
the  period  of  the  statute  of  limitations  and  has  abated  by 
death  or  marriage  of  one  of  the  parties  after  the  exj)u^ation  of 
that  period,  a  new  suit  commenced  within  a  reasonable  time 

1  Williams  v.  McDonal,  3  Pin.  331.  3  Act  1798,  ch.  101,  subch.  14,  §  6. 

2  Doe  V.  Waterfcon,  3  B,  &  Aid.  149.        *  State  v.  Boyxi,  2  Gill  &  J.  365. 


LIBERAL   CONSTEUCTION. 


545 


by  the  party  to  or  against  whom  the  action  survived  has  been 
maintained  unaffected  by  the  statute,  though  it  -ontained  no 
saving  for  such  a  case.  ^ 

The  nineteenth  section  of  4  and  5  Anne,  chapter  10,  provides 
that  if  any  person  or  persons  against  whom  a  cause  of  action 
existed,  or  any  of  them,  were  beyond  the  seas,  the  statute  of 
limitations  should  not  commence  to  run  until  their  return. 
Where  one  joint  contractor  died  abroad,  it  was  held  that  the 
statute  did  not  begin  to  run  until  his  death,  and  that,  within 


1  In  Hodsden  v.  Harridge,  3  Will- 
iams' Saunders,  64a,  the  suit  abated  by 
the  marriage  of  the  plaintiflf ,  a  female, 
and  it  was  argued  in  support  of  the 
bar  of  the  statute  that  the  suit  abated 
by  the  vohmtary  act  of  the  plaintiff, 
and  therefore  she  was  not  within  the 
■equity  of  the  statute ;  but  the  court 
.  afiii-med  the  right  to  bring  the  said 
action  within  two  terms.  See  Dum- 
ford's  note  (a)  to  Carver  v.  James, 
Willes,  857.  "  By  the  statute  of  21 
Jac.  1,  c.  16,  §  4,  it  was  provided  that 
*in  all  cases  the  party  plaintiff,  liis 
heu's,  executors  or  administrators,  as 
the  case  shall  require,  may  commence 
a  new  action  or  suit  from  time  to 
time,  witliin  a  year  after  such  judg- 
ment reversed,  on  such  judgment 
given  against  the  plaintiff  or  outlawry 
reversed,  and  not  after.'  AVithin  the 
equity  of  that  section  the  courts  have 
allowed  an  executor  or  administrator, 
within  a  year  after  testator's  or  in- 
testate's death,  to  renew  a  suit  com- 
menced by  the  testator  or  intestate. 
Gargorave  v.  Every,  1  Lutw.  C.  P. 
260 ;  Willcox  v.  Huggius,  Fitzg.  172, 
290;  2  Str.  907.  And  in  Lithbridge 
V.  Chapman,  15  Vin.  Abr.  103,  and 
cited  in  Willcox  v.  Huggins,  that  in- 
dulgence was  extended  to  fourteen 
months  after  the  intestate's  death. 
So  if  there  be  any  delaj^  in  grantmg 
administration  on  account  of  any 
suit  respecting  the  will,  the  time  may 
be  extended.  2  Strange,  907.  No 
35 


precise  time,  indeed,  appears  to  have 
been  fixed.  But  in  that  case  Fitz 
Lee,  J.,  said :  '  I  think  it  shoiild  be 
in  the  nature  of  journeys  accounts, 
which  is  a  taking  up  and  pvusuing 
of  the  old  action  in  a  reasonable  time, 
wliich  is  to  be  discussed  by  the  discre- 
tion of  the  justices.  Spencer's  Case, 
6  Coke,  9&.  And  by  the  same  rale,  I 
think,  what  is  or  is  not  a  recent  prose- 
cution in  a  case  of  this  nature  is  to  be 
determined  by  the  discretion  of  the 
court  from  the  cu-cumstances  of  the 
case;  but  generally  the  year  in  the 
statute  is  a  good  du-ection'  Where 
an  act  of  parhament  for  dividing  and 
allotting  lands  directed  all  disputed 
claims  to  be  tried  by  a  feigned  issue, 
and  limited  the  time  for  bringing 
such  actions  to  six  mouths,  it  was 
holden  that  an  action  brought  witliiu 
the  time,  but  wliich  abated  by  the 
death  of  the  defendant,  must  be  re- 
vived against  the  heir  witliin  six 
months  afterwards.  Knight  v.  Bate, 
2  Cowp.  738."  Crosier  v.  Tomlinson,  2 
Mod.  71 ;  Chandler  v.  Vilett,  2  Saimd. 
120;  Matthews  v.  PliUhps,  2  Salk. 
424;  Piggott  v.  Rush,  4  Ad.  &  El. 
912 ;  Cmiewis  v.  Mornington,  7  EL  & 
B.  283 ;  Kinsey  v.  Hey wai'd,  1  Lord 
Raym.  434 ;  Himter  v.  Glenn,  1  Bailey, 
542;  Parker  v.  Fassit,  1  Har.  &  J. 
337 ;  Allen  v.  Roundti-ee,  1  Spears,  80 ; 
Martm  v.  Archer,  3  HiU  (S.  C),  211 ; 
Angell  on  Lim.  325-330 ;  Huntington 
V.  Brinkerhoff,  10  Wend.  278. 


54G  LIBERAL    CONSTRUCTION. 

six  years  from  his  death,  an  action  might  be  brought  against 
his  co-contractors ;  for  though  such  a  case  was  not  within  th& 
literal  words  of  the  section,  it  was  within  their  equity.^  It  has- 
also  been  held  that  where  a  defendant  has  pleaded  a  partner- 
ship in  abatement  and  the  plaintiff  commenced  a  new  suit 
within  a  year  and  a  day  after  the  first  writ  was  quashed,  the  bar 
of  the  statute  did  not  apply ;  that  the  statute  did  not  run  after 
the  commencement  of  the  original  action.^  These  decisions 
seem  to  proceed  upon  the  cases  interpreting  old  English  stat- 
utes by  their  equity.  There  may  be  reason  in  England  for 
adhering  to  the  early  decisions  while  the  same  statute  contin- 
ues in  force,  and  in  any  other  jurisdiction  adopting  the  same 
statute,  and  therefore,  presumably,  adopting  it  with  the  home 
construction.  Crompton,  J.,  said :  "  I  look  upon  the  construc- 
tion of  old  statutes  as  law  not  to  be  interfered  with ;  it  has 
been  acted  upon,  and  the  legislature  have  taken  it  for  granted. 
"We  are  therefore  to  abide  by  the  old  decisions."  ^  But  it  is 
held  to  be  no  answer  to  the  plea  of  the  statute  of  limitations 
that  after  a  cause  of  action  accrued,  and  after  the  statute  had 
begun  to  run,  the  debtor,  within  the  six  years,  died,  and  that 
by  reason  of  litigation  as  to  the  right  of  probate  an  executor 
of  his  will  was  not  appointed  until  the  expiration  of  the  six 

1  Towns  V.  Mead,  16  C.  B.  123,  134,  ^  Cuxlewis  v.  Momiugton,  supra. 
141.  See  Townsend  v.  Deacon,  3  Ex.  Tliis  is  well  iUusti'ated  by  the  inter- 
706 ;  Forbes  v.  Smith,  11  id.  161.  The  pretation  given  in  this  country  of  the 
charter  of  a  commercial  corporation  borrowed  plu-ase  "  beyond  seas  "  — 
restrained  the  making  of  debts  owing  out  of  the  state :  Murray  v.  Baker,  3 
at  the  same  time,  exceeding  tlu-ee  Wheat.  541 ;  Forbe  v.  Foot,  2  Mc- 
times  the  amount  of  stock  paid  in.  Cord,  331 ;  Shelby  v.  Guy,  11  Wheat, 
and  provided  that  the  directors  361 ;« Bank  of  Alexandria  v.  Dyer,  14 
should  be  personally  Uable  for  the  Pet.  141 ;  Pancoast  v.  Addison,  1  H. 
excess,  as  well  as  the  company.  On  &  J.  350 ;  Wakefield  v.  Smart,  8  Ark. 
the  question  whether  such  a  liabiUty  488;  Denham  v.  Holeman,  26  Ga. 
of  the  directors  came  witliin  the  six  182 ;  Stephenson  v.  Doe,  8  Blackf. 
montlis'  hmitation  for  bringing  ac-  508 ;  Galusha  v.  Cobleigh,  13  N.  H.  79  ; 
tions  for  penalties,  fines  and  forfeit-  Richardson  v.  Richardson,  6  Ohio, 
ures,  it  was  held  that  the  statute  Avas  125 ;  West  v.  Pickesimer,  7  id.  235. 
not  penal,  but  remechal ;  therefore  Or  out  of  the  United  States :  Mason 
that  it  was  not  within  that  provision  v.  Johnson,  24  lU.  159 ;  Marvin  v. 
of  the  statute  of  Umitations.  Neal  v.  Bates,  13  Mo.  217 ;  Fackler  v.  Fack- 
Moultrie,  12  Ga.  104  ler,  14  id.  431 ;  Keeton  v.  Keeton,  20 

2  Downing  v.  Lindsay,  2  Pa,  St  id.  530;  Gonder  v.  Eastabrook,  33 
382.  Pa.  St.  374 


LIBERAL   CONSTKUOTION.  547 

3'cars,  and  that  the  plaintiff  sued  the  executor  witliin  a  reason- 
able time  after  probate  granted.^  The  death  of  the  party  to 
or  against  whom  an  action  has  accrued  will  not  suspend  the 
statute;'  not  even  if  the  heir  or  devisee  be  under  a  disability 
will  the  running  of  the  statute  in  such  case  be  arrested.' 

§  425.  Where  a  statute  limited  the  time  for  suing,  but  gave 
a  further  period  to  persons  abroad,  after  they  returned,  it  was 
construed  as  giving  that  additional  time  to  the  executor  of  a  per- 
son who  never  returned  but  died  abroad.*  A  Vermont  stat- 
ute of  limitations  provided  that  when  any  suit  shall  fail  by 
reversal,  on  Avrit  of  error,  motion  in  arrest  of  judgment,  plea 
in  abatement  or  on  demurrer,  and  "the  merits  of  the  cause 
shall  not  be  tried,"  the  plaintiff  may,  from  time  to  time,  com- 
mence another  suit  within  one  year  after  such  judgment  re- 
versed, etc.  In  Phelps  v.  Wood  ^  the  court,  by  Redfield,  J.^ 
said :  "  It  is  evident  this  exception,  or  proviso  of  the  statute, 
was  intended  to  reach  all  those  cases  where  a  suit  was  brought 
and  the  merits  of  the  action  failed  to  be  tried,  without  the 
fault  of  the  plaintiff,  and  the  period  of  limitation  had  become 
complete  during  the  pendency  of  the  suit.  So  that  the  present 
suit  is  clearly  within  the  equity  of  the  proviso,  although  not 
strictly  within  its  terms.  It  may  be  said,  too,  that  should  a  suit 
be  abated,  without  a  plea,  but  on  motion,  as  may  sometimes  be 
done,  the  case  would  not  come  within  the  exception.  The 
same  is  true  where  the  j)laintiff  is  compelled  by  some  error  in 
pleading,  variance,  or  otherwise,  to  become  nonsuit,  without 
his  own  fault.  And  no  doubt  these  and  many  other  cases,  not 
coming  technically  within  the  terms  of  the  proviso,  would 
still  be  held  to  come  within,  its  equity."  ^    If  the  cause  of  ac- 

1  Rhodes  v.  Smethurst,  4  M.  &  W.  ogous  instances  from  the  reports.   He 

42.  puts  them  on  the  ground  that  the 

^Daniel  v.  Day,  51  Ala.  431.  statute  of  Umitations  is  founded  on 

5  Meeks  v.  Vassault,  3  Saw.  206.  aa    arbitrary  presuuiption    of    pay- 

*  Townsend  v.  Deacon,  3  Ex.  706 ;  ment     "  These  cases,"  he  says,  ''  are 

Forbes  v.  Smith,  11  icL  161.  all  decided  upon  tlie  prmciple  of  re- 

5  9  Vt.  399.  garding  the  spirit  and  intent  of  the 

6  This  case  sanctions  a  latitudinary  statute  rather  than  a  strict  interpre- 
consti'uction  to  except  cases  on  the  tation  of  its  terms.  We  are  inclined 
ecjxiity  of  the  statute,  and  is  not  in  to  adopt  the  same  doctrine  here,  be- 
harmony  with  the  general  current  of  cause  we  think  it  just  and  well  wai-- 
authority  of  that  state  in  that  I'egard.  rauted  by  decided  cases  in  referenc3 
The  learned  judge  gives  several  anal-  to  this  subject    As  a  general  rule  I 


548 


LIBERAL   CONSTRUCTION. 


tion  accrues  after  the  intestate's  death  it  has  been  considered 
in  some  cases  as  existing  only  from  the  time  there  was  some 
one  capable  of  suing,  and  hence  that  the  statute  commences 
to  run  only  from  the  grant  of  administration.^ 

§  4:2Q.  The  statute  of  James  I.  was  "  worded  very  loosely  i"^ 
and  its  beneficial  operation  during  the  long  period  it  has  been 
in  force  has  been  ascribed  to  its  liberal  interpretation.*  Mr. 
AVood  in  his  valuable  work  on  limitations  thus  succinctly  epito- 
mizes some  instances  of  that  liberal  construction :  "  Although 
there  is  no  express  mention  of  the  action  of  assumpsit,  which 
was  at  the  period  of  its  enactment  the  most  important  of  all 
actions,  yet  as  it  was  clear  that  this  omission  was  uninten- 
tional,^ it  was  construed  as  embracing  that  action  by  fair  in- 
tendment, and  as  coming  within  the  reason  of  the  statute,  and 
also  as  coming  under  the  head  of  trespass  on  the  case.^     So, 


should  be  averse  to  adopting  such  a 
rule  of  construction,  as  bemg  unsafe 
and  unsatisfactoiy.  But  statutes  of 
limitation  regard  the  remedy,  and, 
being  foimded  upon  an  ai'bitrary 
ground  of  presumption,  require  to  be 
liberally  expounded  to  prevent  in- 
justice." 

Tynan  v.  Walker,  35  Cal.  634,  con- 
tains a  sti'ong  protest,  well  supported 
by  authority,  against  imiDhed  excep- 
tions to  the  statute  of  limitations  on 
the  theory  that  the  cases  were  withia 
the  reason  of  the  exceptions  for 
which  the  statute  itself  provided; 
the  allowance  of  such  exceptions 
"ovei-tum,"  says  Sanderson,  J.,  "the 
maxim  that  courts  are  authorized 
to  declare  the  law  only,  and  not  to 
make  it.  If  they  may  add  at  all  to 
the  exceptions  provided  for  in  the 
statute,  under  the  pretense  that  the 
case  before  them  is  of  equal  equity 
with  those  given  in  the  statutes,  who 
is  to  fix  the  limit  of  their  interpola- 
tions, or  establish  the  line  between 
legislative  and  judicial  functions? 
If  they  may  add  one  to  the  list  of  ex- 
cepted cases,  by  parity  of  reason  they 
may  add  another,  and  so  on  until  the 


entire  body  of  the  statute  has  become 
emasculated,  and  the  wiU  of  the  ju- 
diciaiy  substituted  for  that  of  the 
legislature.  How  much  more  ia  keep- 
ing with  the  legitimate  exercise  of 
judicial  functions  are  those  cases 
where  it  has  been  held  that  the  courts 
can  create  no  exceptions  where  the 
legislatm-e  has  made  none." 

1  Fishwick  v.  Sewell,  4  H.  &  J.  399 ; 
Geiger  v.  Brown,  4  McCord,  423; 
Aritt  V.  Elmore,  2  Bailey,  595 ;  Clark 
V.  Hardiman,  2  Leigh,  347.  See 
Tynan  v.  Walker,  35  CaL  634. 

2  Parke,  B.,  ia  Inghs  v.  Haigh,  8  M. 
&  W.  769 ;  Wood  on  Stat.  Lim.  §  16. 

3  Wood  on  Limitations,  sec.  16. 

*  Denman,  C.  J.,  in  Pigott  v.  Rush, 
4  A.  &  E.  912. 

5  HaiTis  V.  Saunders,  4  B.  &  C.  411 
Bac.   Abr.    title    Limitations,  E.  L 
Leigh  V.  Thornton,  1  B.  &  Aid.  625 
Beatty    v.    Burnes,   8    Cranch,  98 
Chandler   v.   Villett,  2  Saund.   120 
Haven  v.  Foster,  9  Pick.  IIS ;  Crosier 
V.  Tomhnson,  2  Hod.  71 ;  Baldro  v. 
Tohnie,  1   Oregon,  176;   WiUiams  v. 
Williams,   5  Oliio,   444;    Maltby    v. 
Cooper,  Morris  (la),  59. 


LIBERAL   CONSTRUCTION.  549 

too,  although  the  saving  clause  in  cases  of  disability  does  not 
in  terms  mention  any  actions  on  the  case  except  actions  on  the 
case  for  words,  yet  it  has  always  been  construed  as  extending 
to  all  actions  on  the  case  from  the  manifest  inconvenience  of 
a  contrary  construction." '  The  general  rule  is,  undoubtedly, 
that  the  statute  of  limitation  begins  to  run  against  a  party  im- 
mediately upon  the  accrual  of  the  right  of  action,  and  con- 
tinues to  run,  unless  he  Avas  then  under  a  disability  mentioned 
in  it,  or  its  running  is  prevented  or  arrested  by  some  fact  speci- 
fied for  that  effect  in  the  statute.^ 

§427.  "Where  the  legislature  has  made  no  exception  the 
courts  of  justice  can  make  none,  as  this  would  be  legislating.* 
The  insolvency  of  the  defendant  or  the  plaintiff's  want  of 
means  to  prosecute  a  suit,  or  his  banlo-uptcy,  will  not  suspend 
or  prevent  the  running  of  the  statute.*  But  one  implied  ex- 
ception has  been  extensively  recognized,  namely,  that  the  stat- 
ute does  not  run  during  a  period  of  ci\al  war  as  to  matters  of 
controversy  between  citizens  of  the  opposing  belligerents.* 
Another  example  of  avoiding  a  positive  statute  upon  grounds 
of  equity  is  afforded  by  tliose  cases  in  which  courts  of  equity 
give  effect  to  unwritten  contracts  relating  to  lands  on  the 
ground  of  part  performance.^  The  great  object  of  the  statute 
of  frauds  is  clearly  expressed  in  the  title  prefixed  to  it.  It  is 
for  the  prevention  of  frauds  and  perjuries.  It  is  not,  there- 
fore, to  be  presumed  that  it  was  intended  in  any  instance  to 

1  Wood  on  St  of  Lim.  sec.  16.  lard,  16  Wend.  572 ;   Sands  v.  Camp- 

2  WeUs  V.  CliUd,  13  AUen,  333 ;  The  bell,  31  N.  Y.  345.  In  North  Carolina, 
Sam  Slick,  3  Curt.  480 ;  Harrison  v.  it  was  held  in  Vance  v.  Grainger, 
Harrison,  39  Ala,  489 ;  Dozier  v.  Ellis,  Conf.  71,  that  where  the  evidence  of 
28  Miss.  730 ;  Barnes  v.  Williams,  3  debt  sued  on  had  been  detained  in 
Ired.  L.  481 ;  Warfiekl  v.  Fox,  53  Pa.  the  hands  of  a  master  by  order  of  a 
St.  382 ;  Bucklin  v.  Ford,  5  Barb.  393 ;  court  of  equity,  the  statute  was  mean- 
Sacia  v.  De  Graaf,  1  Cow.  356 ;  Prj'or  time  suspended. 

V.  Rybm-n,  16  Ark.  671 ;  Favorite  v.  »  Bank    v.    Dalton,    9    How.   523 ; 

Booher,  17  Ohio  St.  548;  Howell  v.  Mclves    v.    Ragan,     3    Wlieat    29; 

Han-,  15  Ala,  194 ;  Conover  v.  Wright,  Troup  v.  Smith,  20  John.  33 ;  CaUis 

6  N.  J.  Eq.  613;  Clark  v.  Richardson,  v.  Waddy,  2  M\mf.  511 ;  Hamilton  v. 

15  N.  J.  L.  347 ;  De  Kay  v.  Darrah.  14  Smith,  3  Murphy,  115. 

id.  288;  Thorpev.  Corwin,  20id.  311;  *  Mason    v.    Crosby,    Da  vies,   303; 

Piuckney  v.  Burrage,  31  id.  21 ;  Kist-  Harwell  v.  Steel,  17  Ala.  372. 

ler  V.  Hereth,  75  Ind.  177  ;  Parsons  v.  *  Wood  on  St  Lim.  §  6 ;  §  368,  ante, 

McCracken,  9  Leigli,  495 ;  Rogui-s  v.  *>  2  Story's  Eq.  §  753  et  seq. 

Hillliouse,  3  Conn.  398 ;  Barker  v.  Mil- 


550  LIBERAL   CONSTRUCTION. 

encourage  fraud,  and  Tve  may  infer  that  any  construction 
wliicli  would  have  a  certain  tendency  to  do  so  would  counter- 
act the  design  of  the  legislature  by  advancing  the  mischief 
intended  to  be  prevented.^  As  the  statute  was  intended  to 
prevent  frauds  and  perjuries,  any  agreement  in  which  there 
was  no  dano-er  of  either  has  been  held  to  be  out  of  the  stat- 
ute ;  ^  or  if  within  the  statute,  it  is  taken  out  when  specific 
performance  is  necessary  to  prevent  fraud,  as  in  case  of  one 
party  refusing  to  perform  when  the  other  had  partly  per- 
formed.'' 

§  428.  Statutes  which  are  to  be  liberally  construed  will, 
like  all  others,  be  so  construed  as  to  exclude  all  cases  which, 
though  within  the  letter,  are  not  within  the  mischief  to  be 
remedied,  or  the  remedial  or  benign  object  in  view,  and,  there- 
fore, not  within  the  intention  of  the  law-maker.  A  statute 
enacting  that  any  deed  from  a  husband  to  a  wife  for  her  use 
shall  be  void  as  against  his  creditors,  who  were  such  at  the 
time  of  execution,  does  not  prevent  a  voluntary  conveyance 
by  the  husband  of  a  chattel  which  is  exempt  from  execution.* 
As  this  interpretative  function,  however,  of  excluding  cases 
and  applications  which  are  not  within  the  legislative  intention 
is  not  peculiar  to  hberal  construction,  a  few  cases  by  way  of 
farther  illustration  will  suffice.^  Municipal  corporations,  by 
reason  of  the  purposes  for  which  they  are  organized  and  for 
which  they  raise  money  and  possess  property,  are  excepted 
by  implication  from  various  statutes  which  apply  to  corpora- 
tions generally.  They  are  generally  held  not  subject  to  gar- 
nishment.^   In  some  of  the  states,  either  by  force  of  statutes 

1  WUber  v.  Paine,  1   Oliio,   117;  2  9  Colo.  204;   Covington  v.  McNickle, 

Pomeroy's  Eq.  §  921.  18  B.  Mon.  262 ;  Wheeler  v.  McCor- 

2Att'y-Gen'l  V.  Day,  1  Ves.  Sr.  221.  mick,  8    Blatchf.   267;    MaxweU   v. 

3  Bond  V.  Hopkins,  1   Sch.  &  Lef.  Collins,   8  Ind.   38 ;    Vane  v.  Vane, 

433 ;  Wilson  v.  West  Hartlepool  Co.  L.  R  8  Ch.  383 ;  Union  Canal  Co.  v. 

2  De  G.  J.  &  S.  475 ;  Humphreys  v.  Young,  1  Whart.  410. 
Green,  L.  R.  10  Q.  B.  Div.  148 ;  Nunn        « Erie  v.   Knapp,  29  Pa,   St.   173 

V.  Fabian,  L.  R.  1  Ch.  35.  Bulkley  v.   Eckert,    3    Pa.   St.   368 

*  Smith  V.  Allen,  39  Miss.  469.  McLellan    v.    Young,    54    Ga.    399 

s  Commercial  Bank  v.  Foster,  5  La.  Mobile    v,    Rowland,    26    Ala.    498 

Ann.  516;   Ayers  v.  Knox,  7  Mass.  Hawthorn  v.  St.  Louis,  11  Mo.  59 

806;    Green    v.    Commonwealth,   12  Pendleton    v.    Perkins,    49    id.  565 

AUen,  155 ;  Stockett  v.  Bird,  18  Md.  Fortune  v.  St.  Louis,  23  id.  239 ;  Had- 

484 ;  Electro-K  etc.  Co.  v.  Van  Auken,  ley  v.  Peabody,  13  Gray,  200 ;  Boone 


LIBERAL   CONSTKUCTION.  OOl 

nvhich  indicate  the  purpose  to  subject  them  to  such  process,  or 
by  the  courts'  refusing  to  except  the  reasons  operating  else- 
where and  thereon  to  accept  them  by  impHcation,  these  corpo- 
rations are  liable,  like  natural  persons  and  other  corporations, 
to  garnishment.^  The  revenues  of  public  corporations  are  the 
essential  means  by  which  they  are  enabled  to  perform  their 
appointed  work.  Deprived  of  their  regular  and  adequate  sup- 
ply of  revenue,  they  are  practically  destroyed,  and  the  ver}" 
ends  of  their  creation  thw^arted.  It  is  settled  doctrine  that 
the  taxes  and  public  revenues  of  such  corporations  cannot  be 
•seized  under  execution  against  them,  either  in  the  treasury  or 
in  transit  to  it.^ 

§  429.  The  application  of  the  words  of  a  statute  may  be 
restrained  to  bring  the  operation  of  it  within  the  intention 
of  the  legislature,  when  no  violence  is  done  by  such  inter- 
pretation to  the  language  employed.  On  this  principle  the 
provision  that  no  person  shall  be  sued  before  any  justice  ex- 
cept in  the  township  where  he  resides  was  held  to  have  no 
application  to  a  defendant  w^ho  resided  out  of  the  state  or  in 
another  county.  The  object  of  the  statute  was  to  prevent 
justices  at  the  county  seat  of  a  county  from  engrossing  the 
principal  business  at  the  expense  of  the  justices  of  the  other 
townships.*  "  An  act  concerning  conveyances  "  provided  that 
every  partition  of  any  tract  of  land  or  lot  made  under  any 
order  or  decree  of  any  court,  and  every  judgment  or  decree  by 
which  the  title  to  any  tract  of  land  or  lot  shall  be  recovered, 
shall  be  recorded ;  .  .  .  and  until  so  recorded,  such  parti- 
Co.  V.  Keck,  31  Ark.  387 ;  Stillman  v.  v.  Hartford,  12  Conn.  404 ;  Wilson  v. 
Isham,  11  Conn.  123;  Derr  v.  Lubey,    Lewis,  10  R.  I.  285;  Wales  v.  Musca- 

1  MacArthur,  187 ;  Bradley  v.  Rich-  tine,  4  Iowa,  302 ;  Drake  on  Att  (5th 
niond,6Vt.l21 ;  Parsons  v.McGavock,    ed.)  §  516. 

2  Tenn.  Ch.  581 :  Memphis  v.  Laskie,  2  Dillon  on  Municipal  Corporations 
9  Heisk.  511 ;  Biunliam  v.  Fond  du  (2d  ed.),  §§  9,  65,  and  cases  cited;  Chi- 
Lac,  15  Wis.  193 ;  Buflfham  v.  Racine,  cago  v.  Hasley,  25  111.  595 ;  Egeiton 
26  Wis.  449 ;  McDougal  v.  Hennepin  v.  IMunicipahty,  1  La.  Ann.  435 ;  Mu- 
Co.  4  Minn.  184;  Mervvin  v.  Chicago,  nicipalitj^  v.  Hart,  6  icL  570;  New  Or- 
45  111.  133 ;  Greer  t.  Rowley,  1  Pitts-  leans,  etc.  R.  R.  Co.  v.  IMimieipality. 
burgh,  1 ;  Mayor,  etc.  v.  Root,  8  Mi  7  id.  148.  See  Smoot  v.  Hart,  33  Ala. 
95 ;  Brown  v.  Gates,  15  W.  Va.  131.        69 ;  Newark  v.  Funk.  15  Ohio  St  462. 

I  Adams  v.  Tyler,  121  Mass.  380;  sMaxweU  v.  CoUins,  8  Ind.  38; 
W^hiddeu  v.  Drake,  5  N.  H.  13 ;  Bray  Wheeler  v.  :McCormick,  8  Blatchf. 
v.  Wallingford,  20  Conn.  416 ;  Ward    267. 


552 


LIBERAL    CONSTRUCTION. 


tion,  judgment  or  decree  sliall  not  be  received  in  evidence  in- 
support  of  any  right  claimed  by  virtue  thereof.'  In  an  action 
of  trespass  to  try  title  and  for  partition  of  land,  a  former  un- 
recorded judgment  was  offered  in  evidence.  It  was  held  ad- 
missible ;  that  this  statute  was  only  intended  for  the  protection 
of  hona  fide  purchasers  and  creditors ;  that  it  has  no  appUca- 
tion  when  such  judgment  is  offered  in  evidence  in  a  second 
trial  between  the  parties  to  the  former  suit  in  which  it  was 
rendered.'^ 


1  Pasc.  Dig.  art.  4710. 

2  Rvissell  V.  Farquliar,  55  Tex.  355. 
In  tliis  case  Moore,  C.  J.,  said :  "If 
coui-ts  were  in  aU  cases  to  be  con- 
trolled in  their  construction  of  stat- 
utes by  the  mere  literal  meaning  of 
the  words  in  wliich  they  are  couched, 
it  might  well  be  admitted  that  the 
appellant's  objection  to  the  evidence 
was  well  taken.     But  such  is  not  the 
case.    To  be  thus  controlled,  as  has 
often  been  held,  would  be  for  the 
courts,  in  a  blind  effort  to  refrain 
from  an  interference  with  legislative 
authority  by  their  failure  to  apply 
well-established  ndes  of  construction, 
to  in  fact  abrogate  their  own  power 
and  usurp  that  of  the  legislatiire,  and 
cause  the  law  to  be  held  du-ectly  the 
contrary  of  that  which  the  legislature 
had  in  fact  intended  to  enact.  Wliile  it 
is  for  the  legislatiu-e  to  make  the  law 
it  is  the  duty  of  the  courts  to  '  tiy  out 
the  right    intendment'    of    statutes 
upon  which  they  are  called  upon  to 
pass,  and  by  their  proper  consti'uc- 
tion  to  ascertain  and  enforce  them 
according  to  their  ti'ue  intent.     For 
it  is  this  intent  which  constitutes  and 
is  in  fact  the  law,  and  not  the  mere 
verbiage    used    by  inadvertence    or 
otherwise  to  express  its  intent,  and 
to  follow  which  wovxld  prevent  that 
intent.     In  seeking  to  ascertain  the 
intent  of    a    statute,    the  words  in 
which  it  is  expressed  should,  and  evi- 
dently must,  receive  our  first  as  well 


as  chief  consideration.    If,  upon  the 
perusal  of  a  statute,  its  intent,  and 
the  means  for  caiTying  such  intent 
into  effect,  plainly  appear,  and  there 
is  no  apparent  conflict  between   it 
and  other  seemingly  vmrepealed  laws, 
it  should  be  consti-ued  and  enforced 
by  the  courts  in  conformity  with  the 
ordmary  signification  of  the  words 
in  wliich  it  is  expressed,  unless  a  ne- 
cessity for  otherwise  construing  it  is 
made  to  appear.     But  if  its  mere  pe- 
rusal should  not  enable  the  court  to 
satisfactorily  interpret  it,  then  it  be- 
comes the  duty  of  the  court  to  look 
diligently  for  the  intention  of  the 
legislatm-e,  keeping  in  view  at  all 
times  the  old  law,  the  evil  and  the 
remedy.     R.  S.  art.  315,  sec.  6.     .    .    . 
The  section  in  question  forms  a  part, 
of  an  act  concerning  conveyances. 
And  when  subsequently  re-enacted, 
it  is  found  in  a  law  regiilating  and 
concerning  registration.     The  evil  in 
the  legislative  mind  evidently  was 
that,    vmder    existing    laws,    frauds 
might  be  perpeti-ated  upon  hona  fide 
purchasers  and  creditors  by  persons 
who  had  previously  parted  with  or 
been  divested  of  their  title  to  land, 
upon     subsequent    pm-chasers    and 
creditors    having    no  adequate  evi- 
dence or  information  of  such  previ- 
ous divestiture  of  title.     By  the  old 
law  the  bringing  of  suit  charged  all 
the  world  with  notice  lis  pendens  of 
the  matters  then  in  htigatiou.     But 


LIBERAL   CONSTRUCTION.  bOO 

A  statute  of  Virginia  prohibited  the  sale  of  any  office  or 
deputation  of  any  olhce  toucliing  the  administration  of  jus- 
tice, and  contained  a  proviso  tliat  nothing  in  the  act  should  be 
so  construed  as  to  proliibit  the  appointment,  quahfication  and 
acting  of  any  deputy  clerk  or  deputy  sheriff  who  shall  be  em- 
ployed to  assist  the  principals  in  the  execution  of  the  duties  of 
their  respective  offices.^  The  question  arose  on  that  statute 
whether  a  contract  was  legal  by  which  a  sheriff  agreed  that 
another  should  perform  the  duties  of  his  office,  and  have  all  the 
fees,  privileges  and  emoluments  of  it,  and  in  consideration 
thereof  should  pay  to  the  sheriff  a  gross  sum,  unconnected  in 
any  manner  with  the  fees  of  the  office.  The  court  declared 
that  it  was  settled  by  numerous  authorities  that,  where  the  res- 
ervation or  agreement  is  not  to  pay  out  of  the  projlts,  but  to 
pay  generally  a  certain  sum,  which  must  be  paid  at  all  events, 
this  is  a  sale  of  the  office ;  and  a  bond  for  the  performance  of 
such  an  agreement  is  void  by  the  statute.^  It  apparently  adopts 
the  view  of  WiUis,  C.  J.,  in  Layng  v.  Paine,  as  to  the  principal 
reasons  for  making  the  statute :  (1)  that  offices  might  be  ex- 
ercised by  persons  of  skiU  and  integrity,  and  (2)  that  they 
might  take  only  the  legal  fees.  The  proviso,  and  the  history  of 
the  office  —  it  having  been  immemoriaUy  farmed  out,—  induced 
the  court  to  hold  that  the  contract  in  question  was  not  prohib- 
ited. A  statute  which  inhibited  a  party  as  witness  testify- 
ing as  to  any  transaction  with  or  statement  by  a  deceased 
party  was  held  not  to  extend  to  conversations  with  a  surviv- 

this  notice  ceased  with  the  termina-  injiu-ed  thereby  had  a  right  to  com- 

tion  of  the  case ;  and,  therefore,  con-  plain,  or  to  insist  tliat  another  had 

veyances  by  judgment  or  decree  of  lost  some  valuable  or  vested  right  by 

court  were  within  the  same  evil  as  his  failure  to  comply  with  the  law." 

existed  in    regard  to  transfers    be-  Crosby  v.  Huston,  1  Tex.  237. 

tween  parties  prior  to  the  registration  1 1  Kev.  Code  of  1819,  ch.  145,  p.  559. 

laws.     Hence  it  was  essential  that  -'Hailing  v.  McKinney,  1  Leigh,  42, 

they  should  be  subjected  to  the  same  citing  Ingram's  Case,  Co.  Lit.  234a; 

rule.     Public    convenience    also  de-  Trevor's  Case,  Cro.  Jac.  269 ;  12  Coke, 

manded  that  there   should  be    one  369 ;  Woodward  v.  Foxe,  3  Lev.  289 ; 

office  in  each  county  where  those  de-  2  Vent  187 ;  3  Inst  148 ;  Layng  v. 

siring  to  do  so  could  inform  them-  Paine,  Willes'  Rep.  571 ;  Parsons  v. 

selves  as  to  the  transfers  or  incum-  TlK)mpson,  1  H.  Bl.  322 ;  Garforth  v. 

brances  affecting  all  the  real  estate  in  Fearon,  id.  327 ;  Law  v.  Law,   Cas. 

the  county.     But  if  any  one  failed  to  Temp.   Talb.    140  ;   3   P.   Wms.   391 ; 

have  his  transfer  registered,  certainly  Harrington  v.  Du  Chatel,  1  Bro.  C.  C 

only  those  who  were  in  some  way  124 ;  Noel  v.  Fisher,  3  Call,  215. 


554:  LIBEKAL    CONSTllUCTION. 

ing  partner  of  the  deceased,  though  the  testimony  might  result 
in  estabUshing  a  contract  with  the  firm.^  A  New  Jersey 
statute  makes  void  and  of  no  effect  any  warrant  of  attorney 
for  confessing  judgment  which  shall  be  included  in  the  body 
of  any  bond,  bill  or  other  instrument  for  the  payment  of 
money.2  This  provision  was  contained  in  an  act  which  when 
passed  was  entitled  "  An  act  to  regulate  the  practice  of  the 
courts  of  law."  It  was  therefore  held  that  it  was  a  mere  regu- 
lation of  the  practice  in  the  courts  of  that  state,  and  did  not 
prohibit  the  making  therein  of  such  warrants  of  attorney 
for  use  in  other  states  in  the  form  that  may  be  legal  in  their 
€ourts.*  "Laws,"  by  construction,  have  been  narrowed  to 
mean  only  written  laws,  as  in  the  application  of  that  provision 
of  the  thirty-fourth  section  of  the  judiciary  act  of  1789,  that 
"  the  laws  of  the  several  states,  except  when  the  constitution, 
treaties  or  statutes  of  the  United  States  shall  otherwise  require 
or  provide,  shall  be  regarded  as  rules  of  decision  in  trials  at 
€ommon  law  in  the  courts  of  the  United  States,  in  cases  where 
they  apply."  * 

In  Holmes  v.  Paris  ^  the  statute  required  a  notice  to  a  sur- 
veyor, or  some  municipal  officer,  of  a  defect  in  a  highway, 
for  a  period  not  less  than  twenty-four  hours  prior  to  an  acci- 
dent, to  render  the  town  liable.  But  if  the  defect  was  caused 
by  the  surveyor  while  acting  as  a  servant  of  the  town,  the 
notice  was  not  necessary.  The  court  say :  "  AVe  inchne  to  the 
opinion  that  the  statute  does  not  apply  to  a  case  such  as  this. 
In  its  literal  terms,  it  does ;  in  its  purpose  and  intent,  it  does 
not.  This  particular  provision  of  the  statute  was  intended 
for  another  class  of  cases.  Its  purpose  is  to  allow  a  town  a 
reasonable  opportunity  to  remove  a  defect  after  receiving  in- 
formation of  its  existence.  ]Srotice  of  a  fact  to  a  person  who 
already  knows  the  fact  cannot  be  useful.  .  .  .  Statutes 
are  often  in  some  respects  literally  deficient  by  reason  of  their 
generality.     They  are  necessarily  expressed  in  general  terms. 

1  Bennett  v.  Fraiy,  55  Tex.  145 ;  v.  Tabb,  18  WaU.  546 ;  Supervisors  v. 
AVhart.  Ev.  §  469.  Schenck,  5  id.  772 ;  Watson  v.  Tarp- 

2  Rev.  of  1877,  p.  81,  §  1.  ley,  18  How.  517 ;  Debnas  v.  Ins.  Co. 
s  Hendi-ickson  v.  Fries,  45  N.  J.  L.     14  Wall.  665. 

555,  5  75  Me.  559. 

*  Swift  V.  Tyson,  16  Pet.  1 ;  Boyce 


LIBERAL   C0X8TECCTI0N.  555 

All  cases  that  may  arise  under  them  cannot  be  anticipated. 
Therefore  there  must  be  some  flexibility  in  their  interpre- 
tation and  application  to  facts.  There  must  be  some  power 
and  discretion  in  the  courts  to  consider  probable  purposes, 
motives  and  results."  The  object  of  an  act  was  to  pro- 
vide for  the  disposition  of  public  property  and  not  to  interfere 
Avith  the  location  of  streets ;  it  was  therefore  held  that  the 
designation  therein  of  one  of  the  boundaries  of  that  property 
as  the  "  eastern  line  of  E  street  to  its  point  of  intersection  with 
the  northern  line  of  J  street,"  was  not  intended,  and  did  not 
operate  to  extend  E  street  northward  to  J.^  A  statute  against 
gaming  was  that,  "  if  any  person  shall  lose  to  another,"  he 
might  receive  it  back.  This  was  held  not  applicable  to  one 
who  sets  up  or  is  interested  in  setting  up  a  faro  bank,  and  loses 
money  to  those  who  bet  against  the  bank,^  "  When  the  evil," 
say  the  court,  "  which  led  to  the  passage  of  the  act  is  con- 
sidered, it  is  evident  that  the  legislature  did  not  intend  to  em- 
brace within  its  protection  those  who  engage  in  gaming  by 
means  of  contrivances  which  are  onl}^  used  by  those  who  make 
gaming  a  business,"  *  A  statute  of  Indiana  required  an  official 
bond  to  be  signed  and  acknowledged  by  the  principal  and  his 
sureties  in  the  presence  of  the  county  commissioners.  The 
question  arose  whether  a  bond  not  so  acknowledged  was  valid. 
The  requirement  was  held  du'cctory.  It  had  been  decided 
that  the  surety  of  an  officer  executing  an  official  bond  upon 
the  faith  of  a  promise  by  the  principal  that  it  would  be  exe- 
cuted by  another  as  surety,  and  allowing  the  principal  to  have 
the  custody  of  the  bond,  would  be  discharged  if  the  bond 
were  tendered  by  the  principal,  and  in  good  faith  accepted, 
without  being  executed  by  that  other.  It  was  merely  to  rem- 
edy the  mischiefs  to  the  public  which  were  apprehended  in 
consequence  of  the  law  as  thus  declared,  and  such  as  might  en- 
sue from  the  forgery  of  sureties'  names,  that  the  statute  in 
question  was  enacted.  That  mischief  was  the  loss  of  public 
moneys  by  sureties  of  officers  avoiding  liability  as  such  upon 
official  bonds.  The  remedy  was  not,  certainly,  to  devise  ad- 
ditional methods  by  which  liability  might  be  avoided,  but  to 
close  for  the  future  the  door  of  escape  already  existing,  or  sup- 

iRiirr    T,    Dana,  23    Cal.    11,    20;        2  Brown  v,  Thompson,  14  Bush,  538. 
-Jacobs  V,  Kruger,  11)  id,  411,  ^  Id, 


55G  LIBEKAL    CONSTEUCTION. 

posed  to  exist;  not  to  relieve  persons  becoming  sureties  of 
county  treasurers,  but  to  protect  the  people  from  the  defalca- 
tions of  those  officers.  It  was  not  for  the  benefit  of  the  surety 
that  he  was  required  in  person  to  acknowledge  the  bond  before 
the  commissioners,  but  it  was  to  prevent  him  from  afterwards 
making  any  question  concerning  the  genuineness  of  his  signa- 
ture, or  the  validity  of  the  instrument  as  against  him.^ 

§  430.  Liberal  construction  is  given  to  suppress  the  mischief 
and  advance  the  remedy.  For  this  purpose,  as  has  abeady^ 
been  said,  it  is  a  settled  rule  to  extend  the  remedy  as  far  as 
the  words  will  admit,  that  everything  may  be  done  in  virtue 
of  the  statute  in  advancement  of  the  remedy  that  can  be  done 
consistently  with  any  construction.^  Where  its  words  are 
plain  and  clearly  define  its  scope  and  lunit,  construction  can- 
not extend  it;  or  where  the  language  is  so  exphcit  as  to 
exclude  any  reasonable  inference  that  such  extension  was  in- 
tended. Lord  Brougham  said :  "  If  we  depart  from  the  plain 
and  obvious  meaning,  we  do  not  in  truth  construe  the  act,  but 
alter  it.  We  supply  a  defect  which  the  legislature  could  eas- 
ily have  supphed,  and  are  making  the  law,  not  interjjreting  it."  * 
"  We  are  bound,"  said  BuUer,  J.,  "  to  take  the  act  of  parlia- 
ment as  they  have  made  it ;  a  casus  omissus  can  in  no  case  be 
supplied  by  a  court  of  law,  for  that  would  be  to  make  law."  * 
It  wiU  make  no  difference  if  it  appears  that  the  omission  on 
the  part  of  the  legislature  was  a  mere  oversight,  and  that 
without  doubt  the  act  would  have  been  drawn  otherwise  had 
the  attention  of  the  legislature  been  du-ected  to  the  oversight 
at  the  time  the  act  was  under  discussion.'*  When  the  lan- 
guage is  general  or  obscure  the  court  must  construe  it,  and, 

1  State  V.  Blaii-,  32  IncL   313.     The  L.  R.    1    C.   C.   R.   284;    Edward   v. 

following  cases  contain  implied  ex-  Trevellick,  4  E.  &  B.  59. 

ceptions  for  not  being  within  the  in-  -Turtle   v.    Hartwell,   6   T.  R.    at 

tention    of  the  statute :  Simpson  v.  jd.  429 ;  Atcheson  v.  Everitt,  1  Cowp. 

Unwin,  8  B.  &  Ad.  134;  Ramsden  v.  at  p.  391. 

Gibbs,  1  B.  &  C.  319 ;  Hearne  v.  Gar-  3  Gwynne  v.   Bm-nell,  7  CI.  &   F. 

ton,  2  E.  &  E.   66 ;   Aberdare  Local  696. 

Board  v.   Hammett,   L.  R.  10  Q.   B.  •»  Jones  v.  Smart,  1  T.  R  44. 

162 ;   Core  v.  James,   L.   R.   7  Q.  B.  ■'  Hardc.  on  St.  21 ;  Lane  v.  Ben- 

135 ;  Reg.  v.  Sleep,  L.  «&  C.  44 ;  Reg.  nett,  1  M.  &  W.  70 ;  N.   E.   R'y  v. 

V.  Dean,    12    M.  &  W.   39 ;    Lee  v.  Leadgate,  L.  R.  5  Q.  B.  161. 
Simpson,  8  C.  B.  871 ;  Reg.  v.  Hai-rey, 


LIBERAL    COXSTRUCTION.  557 

as  far  as  it  can,  make  it  available  for  carrying  out  the  objects 
of  the  legislature  and  for  doing  justice  between  parties.^ 

§431.  Casus  omissus. —  It  will  be  seen  by  the  foregoing 
illustrations  of  liberal  construction  that  where  lanouaiic  has 
received  an  expansive  construction  it  has  been  to  efl'ect  the  in- 
tention of  the  law-maker,  not  to  give  the  statute  an  effect 
beyond  the  intention  or  to  supply  the  defects  of  the  statute. 
It  results  from  the  judicial  function  of  ex])ounding  the  law  as 
it  is  that  the  courts  cannot  extend  it  to  meet  a  case  which  has 
clearly  and  undoubtedly^  been  omitted  to  be  provided  for.^  As 
the  judicial  committee  said  in  Crawford  v.  Spooner,'  "we  can- 
not aid  the  legislature's  defective  phrasing  of  an  act  ;•  we  can- 
not add  and  mend,  and,  by  construction,  make  up  deficiencies 
which  are  left  there ; "  in  other  words,  the  language  of  stat- 
utes, but  more  especially  of  modern  acts,*  must  neither  be  ex- 
tended beyond  its  natural  and  proper  meaning,  in  order  to 
supply  defects,  nor  strained  to  meet  the  justice  of  an  individual 
•case.^  If  the  language  is  plain,  precise  and  unambiguous,  there 
is  no  room  for  construction ;  and  the  particular  intention  so 
expressed  is  alone  to  be  carried  into  effect.  A  statute  of  Con- 
necticut which  validated  defeds  executed  and  acknowledged  in 
any  other  state  "  in  conformity  with  the  laws  of  such  state  " 
was  held  not  to  apply  to  a  deed  of  land  situated  in  that  state, 
executed  in  ]^ew  York  and  acknowledged  before  a  Connecti- 
cut commissioner,  defective  by  the  laws  of  Connecticut,  if 
executed  there,  for  having  but  one  witness.*  In  order  to  ex- 
tend a  statute  by  equitable  construction  beyond  its  letter,  it 
must  be  collected  from  the  act  that  the  wrong:  soufiht  to 
be  redressed  was  one  of  the  considerations  for  passing  it ; 
otherwise  it  is  a  casus  omissus  which  a  court  of  law  cannot 
supply.  Where  an  act  denies  to  one  class  of  suitors  a  remedy 
or  defense  which  others  enjoy,  it  wiU  not  be  extended  by  equi- 
table construction  to  cases  not  specified  in  it,  unless  the  court 

1  PhilUps  V.  PliilUps,  L.  R.  1  p.  &        ^  Hardc.  on  St  20,  21 ;  Lord  Den- 
D.  173.  man  in  Green  v.  Wood,  7  Q.  B.  at 

2  Hardc.  on  St.  20.  p.  185 ;  'Wliiteley  v.  Chappell,  L.  R.  4 

3  6  Moore's  P.  C.  9.  Q.  B.  147, 

••  Lord   Brougham   in   Gwynne  v.        ^  Fai-rell  Foundry  v.  Dart,  26  Conn. 
BumeU,  7  CI.  &  F.  at  p.  696 ;  Lord  Sel-    376. 
borne  in  Pinkerton  v.  Easton,  L.  R. 
16  Eq.  at  p.  492. 


558  LIBERAL   CONSTKTJCTION. 

is  satisfied  the  case  is  witliin  the  mischief  or  occasion  that  was 
in  the  mind  of  the  legislature  at  the  time  of  its  passage.^  A 
statute  in  Maine  provided  that  "  hereafter  when  any  woman 
possessed  of  property,  real  or  personal,  shaU  marry,  such  pro])- 
erty  shall  continue  to  her  notwithstanding  her  coverture,  and 
she  shall  have,  hold  and  possess  the  same  as  her  separate  prop- 
erty, exempt  from  any  liability  for  the  debts  or  contracts  of 
her  husband."  It  was  held  that  under  this  statute  she  could 
not  make  sales  and  purchases  of  property.  The  court, by  Shep- 
ley,  J.,  said :  "  It  was  the  intention  of  the  legislature,  as  the 
title  of  the  act  declares,  to  secure  to  married  women  their 
rights  in  property,  and  it  should  receive  such  a  construction  as- 
wiU  make  that  intention  efTectual,  so  far  as  it  can  be  done  con- 
sistently with  the  established  rules  of  law.  But  courts  of  jus- 
tice can  give  effect  to  legislative  enactments  only  to  the  extent 
to  which  they  may  be  made  operative  by  a  fair  and  liberal 
construction  of  the  language  used.  It  is  not  their  province  to 
supply  defective  enactments  by  an  attempt  to  carry  out  fully 
the  purposes  which  may  be  supposed  to  have  occasioned  those 
enactments.  This  would  be  an  assumption  by  the  judicial  of 
the  duties  of  the  legislative  department."  ^ 

§  432.  An  act  which  authorizes  a  municipal  body  to  open 
and  widen  streets  according  to  the  procedure  therein  pre- 
scribed, and  omits  to  prescribe  a  procedure  for  cases  of  widen- 
ing streets,  is  to  that  extent  inopierative.'  A  statute  providing 
for  testing  the  accuracy  of  the  weights  and  measures  used  in 
seUing  commodities,  imposing  penalties  on  those  who  use  them 
contrary  to  the  act  in  seUing,  is  not  applicable  to  persons  en- 
gaged in  buying.*  The  heir  at  common  law  inherits  except  in 
the  particular  cases  in  Avhich  the  statutes  of  descent  provide 
for  a  different  disposition  of  property,'  and  by  construction  a 
court  cannot  extend  such  statutes  to  any  other  cases.^  An 
officer  having  authority  in  his  county  to  take  proof  or  acknowl- 
edgment of  aU  instruments  in  writing  conveying  land  therein 

1  Scaggs  V.  Baltimore,  etc.  R.  R.  Co.        3  Chaffee's  Appeal,  56  Mich.  244. 

10  Md.  268 ;  Jones  v.  Smart,  1  T.  R.  *  Soutliwestern  R.  R.  Co.  v.  Cohen, 

52;    HuU  V.  Hull,  2  Strob.  Eq.  174;  49  Ga.  627. 

Moore  v.  Indianapolis,  120  Ind.  483 ;  ^  Johnson  v.  Haines,  4  Dall.  64. 

S.  C.  22  N.  E.  Rep.  424.  6  Cresoe  v.  Laidley,  2  Binn.  279. 

2  Swift  V.  Luce,  27  Me.  285. 


LIBERAL   CONSTRUCTION.  559 

was  empowered  by  a  later  statute  to  take  acknowledgment  of 
deeds  for  lands  in  any  part  of  the  state ;  and  it  was  held  that 
his  poAver  to  receive  proof  of  instruments  was  not  thereby  en- 
larged.' There  may  be  no  apparent  reason  why  an  enactment 
is  confined  to  one  of  several  things,  which  might  for  a  sim- 
ilar or  for  precisely  the  same  reason  be  provided  for ;  yet,  if 
such  enactment  is  free  from  ambiguity  and  uncertainty,  the 
courts  cannot  extend  it.^  A  divorce  act  provided  that  any 
order  made  for  the  protection  of  a  married  woman  in  respect 
of  her  earnings  might  be  discharged  by  the  magistrate  who 
made  it ;  it  was  held  that  this  i)ower  could  not  be  exercised 
by  his  successor.^  An  act  authorized  a  specified  and  limited 
number  of  banking  companies  in  each  of  twelve  districts, 
five  of  which  were  authorized  in  H.  count}" ;  it  also  provided 
that  the  number  of  such  banking  companies  authorized  to  be 
formed  and  to  engage  in  business  in  H.  county  should  not  exceed 
four ;  and  the  full  number  having  organized,  and  in  good  faith 
engaged  in  business,  it  was  held  that  the  powers  in  this  re- 
spect authorized  by  the  statute  were  exhausted ;  that  in  case 
of  the  failure  or  surrender  of  the  franchise  by  some  of  such 
companies,  the  statute  gave  no  authority  for  the  organization 
of  new  and  additional  companies  to  take  the  place  of  the 
defunct  ones.* 

§  433.  A  general  act  providing  for  the  organization  of  com- 
panies for  the  manufacture  and  supply  of  gas  was  held  not  to 
authorize  the  creation  of  a  cor^^oration  for  the  purpose  of  sup- 
plying "  natural  gas  "  to  consumers.^  In  the  judicial  argument 
to  this  result  the  court  said :  "  The  judicial  power  of  the  gov- 
ernment may  sometimes  impute  a  legislative  intent  not  ex- 
pressed with  perfect  clearness,  where  the  words  used  import 
such  intent,  either  necessarily  or  by  a  plain  and  manifest  im- 
plication. But  it  would  be  a  dangerous  excess  of  judicial  au- 
thority, not  to  be  justified  by  any  considerations,  for  a  com't 
to  declare  a  law  by  the  imputation  of  intent  when  the  words 

1  Peters  v.  Condron,  2  S.  &  R  80.  *  State  v.  Chase,  Governor,  5  Ohio 

2  Smith  V.  Rines,  2  Sumn.  354 ;  Swift    St.  528. 

V.  Luce,  27  Me.  285.  5  Emerson  v.  Commonwealth,  108 

'Reg.  V.   Arnold,   5  B.  &  S.  322;    Pa.  St  111. 
Sharp,  Ex  parte,  10  Jur.  (N.  S.)  1018. 


560  LIBEKAL   CONSTEUCTION. 

used  do  not  import  it,  either  necessarily  or  by  plain  implica- 
tion, and  when  all  the  surroundings  of  the  enactment  clearly 
evince  that  the  construction  claimed  could  not  have  been 
within  the  legislative  thought."  By  a  statute  an  inspector 
Avas  authorized  at  all  reasonable  times  to  enter  any  shop,  and 
"  there  to  examine  all  Aveights,  measures,  steelyards  or  other 
w^eighing  machines ;  "  "  and  if  upon  such  examination  it  shall 
appear  that  the  said  weights  and  measures  are  hght  or  other- 
wise unjust,  the  same  shall  be  liable  to  be  seized  and  forfeited."  ^ 
It  was  held  that  this  statute  gave  no  power  to  seize  and  for- 
feit a  weighing  machine.- 

§  434.  Remedial  statutes. —  These  have  been  defined  in 
very  general  terms  as  those  which,  in  brief,  are  made  to  cor- 
rect defects  in  the  existing  law  —  for  amendment  of  the  law ; ' 
those  wdiich  have  for  their  object  the  redress  of  some  existing 
grievance,  or  the  introduction  of  some  regulation  conducive 
to  the  public  good.  They  may  be  either  affirmative  or  nega- 
tive, as  they  command  or  prohibit  anything  in  particular  to 
be  done  or  omitted.*  A  variety  of  remedial  statutes  have  been 
cited,  with  the  decisions  thereon,  in  the  preceding  pages. 
Guided  by  the  general  principles  which  underlie  and  justify 
liberal  construction,  the  courts  must  continually  add  to  the 
list ;  for,  in  the  construction  of  the  fluctuating  luxuriance  of 
legislation  by  the  numerous  legislative  bodies  in  this  country, 
there  w411  be  frequent  occasions  to  apply  these  principles  to 
new  cases  to  cure  defects  and  abridge  superfluities  which,  in 
the  phrase  of  Blackstone,  "  arise  either  from  the  general  im- 
perfection of  all  human  laws,  from  the  change  of  time  and 
circumstances,  from  mistakes  and  unadvised  determinations  of 
unlearned  (or  even  learned)  judges,  or  from  any  other  causes 
w^hatever."  ^  Instances  are  chiefly  valuable  as  illustrations  of 
those  principles  and  to  teach  their  true  scope  and  spirit. 
Statutes  enacted  to  promote  and  facilitate  the  administration 
of  justice  are  prominent  in  the  category  of  remedial  statutes.* 

1 5  and  6  W.  4,  cli.  63,  §  28.  *  Van  Hook  v.  Whitlock,  2  Edw. 

2  Thomas  v.  Stephenson,  2  E.  &  B.  Ch.  304,  310 ;  Fairchild  v.  Gwynne,  16 
108.  Abb.  Pr.  31. 

3  Bearpark  v.  Hutchinson,  7  Bing.  ^  1  Cooley's  Black.  Com.  86,  87. 
at  p.  186.  8  MitcheU  v.  Mtchell,  1  Gill,  66. 


LIBERAL   CONSTRUCTION.  561 

Acts  providing  for  a  change  of  venue  for  convenience  of  wit- 
nesses or  to  obtain  an  impartial  trial ;  ^  regulating  the  practice 
of  law,'  or  to  expedite  litigation,^  are  remedial. 

§  435.  Under  an  act  to  prevent  delays  in  obtaining  judgment 
on  account  of  infrequent  sessions  of  the  courts,  a  jjermission 
therein  to  take  judgment  by  default  in  vacation  was  construed 
to  authorize  a  judgment  to  be  entered  by  consent  after  service 
of  process.*  Where  a  hmited  jurisdiction  is  conferred  by  stat- 
ute the  construction  is  strict  as  to  the  extent  of  jurisdiction ; 
but  Uberal  as  to  the  mode  of  proceeding.'^  The  proceedings  of 
a  landlord  to  remove  his  tenant,  being  dilatory  and  expensive, 
a  summary  remedy  was  provided  by  a  statute  in  derogation 
of  the  common  law.  In  that  respect  it  was  held  it  should  be 
strictly  construed.  It  was  remedial  because  intended  to  rem- 
edy the  evils  alluded  to,  and  so  far  it  should  be  construed  Ub- 
erally ;  that  looking  at  the  remedy  the  courts  should  take  care 
that  it  be  made  effectual,  if  possible,  in  the  manner  mtended." 
A  statute  extending,  and  thus,  therefore,  amending  a  similar 
statute  affording  a  summary  remedy,  has  been  held  to  be  re- 
medial and  to  receive  a  hberal  exposition.  This  was  held  in 
reference  to  the  act  of  forcible  entry  and  detainer,  where  the 
amendment  consisted  in  extending  it,  first,  to  a  vendor,  under 
a  contract  of  purchase,  who  has  entered  into  possession  before 
obtaining  a  deed  and  w^ho  refuses  to  comply  with  the  contract ; 
and  second,  to  the  case  where  lands  have  been  sold  under 
a  judgment  or  decree  and  the  party  to  such  decree,  after  the 
time  of  redemption,  refuses  after  demand  to  surrender  posses- 
sion.^ The  amendment  was  held  under  the  first  clause  to 
make  the  act  appUcable  to  one  put  in  possession  by  such  vendee, 
and  under  the  second  to  make  it  applicable  to  a  party  pur- 
chasing the  subject  pendente  lite.  Without  questioning  the 
correctness  of  this  decree  it  is  proper  to  say  that  statutes  pro- 
viding for  summary  remedies  are  strictly  construed.  Why 
should  not  a  later  act  merely  extending  such  summary  remedy 

1  Griffin  V.Leslie,  20  Md.  15;  Wright  5  Russell  v.  WTieeler,  Hempst  3; 

V.  Hanmer,  5  id.  375.  Barret  v.  Chit«-ood,  2  Bibb,  431. 

2Hoguet  V.  WaUace,  28  N.  J.  L.  «  Smith  v.  Moffat,  1  Barb.  65 ;  Lynde 

523.  V.  Noble,  20  John.  80 ;  Wnkiiison  v. 

3  People  V.  Tibbetts,  4  Cow.  384 ;  2  CoUoy,  5  Burr,  at  p.  2G9S. 

Inst.  251,  325,  393.  ■?  Jackson  v.  "Warren,  32  IlL  331. 

*  Hoguet  V.  Wallace,  siqjra. 
36 


562  LIBERAL   CONSTBUCTION. 

be  governed  by  the  same  rule  ?  ^  A  provision  introduced  by 
amendment  to  extend  it  ought  afterwards  to  be  construed  pre- 
cisely as  it  would  be  construed  had  it  been  a  part  of  the  act 
as  originally  enacted.  As  an  amendment  it  is  intended  to  ex- 
tend the  summary  remedy  and  to  supply  a  defect  in  the  exist- 
ing law,  but  only  in  the  sense  in  which  the  original  act  w^as^ 
intended  to  correct  a  defect  in  the  existing  law  affording  a 
different  remedy  in  such  cases.  Such  acts  are  within  the  defini- 
tion of  remedial  laws ;  for  that  reason  they  should  be  Mberally 
construed ;  but  both  the  original  and  amendatory  acts  being  in 
derogation  of  the  common  law  and  providing  a  summary  rem- 
edy, they  are  subject  to  another  rule  requiring  strict  construc- 
tion, which  more  than  neutralizes  the  rule  of  Uberal  construc- 
tion due  to  a  remedial  statute. 

§  4:36.  By  the  probate  procedure  act  of  California  a  creditor 
of  a  decedent's  estate  is  required  to  present  his  claim  duly  veri- 
fied to  the  executor  or  administrator  within  ten  months  after 
publication  of  notice  by  such  executor  or  administrator,  other- 
wise it  is  barred.  An  amendatory  act  was  passed  adding  a 
proviso  "  that  when  it  is  made  to  appear  by  the  affidavit  of 
the  claimant  to  the  satisfaction  of  the  executor  or  administra- 
tor and  the  probate  judge,  that  the  claimant  had  no  notice  as 
provided  in  this  act,  by  reason  of  being  out  of  the  state,  it 
[the  claim]  may  be  presented  at  any  time  before  a  decree  of 
distribution  is  entered."  This  amendment  w^as  held  in  that 
state  to  be  remedial.^  Such  it  obviously  is,  for  it  creates  a 
meritorious  exception  to  an  arbitrary  rule.  A  statute  of  Mas- 
sachusetts provided  that  "  when  an  executor  or  administrator 
dies  or  is  removed  from  office  during  the  pendency  of  a  suit  in 
which  he  is  a  party,  the  suit  may  be  prosecuted  by  or  against 
the  administrator  de  lonis  non^'  etc.  By  a  liberal  construction 
it  has  been  held  in  that  state  that  an  administrator  de  lonis 
non  to  succeed  an  administratrix,  whose  marriage  extinguished 
her  authority,  was  within  that  provision.  All  the  reasons 
w^hich  induced  the  passage  of  that  law  apply  to  such  a  case  \ 
all  the  mischief  which  it  was  intended  to  remedy  would  other- 
wise exist  in  such  a  case,  namely,  delay  in  the  settlement  of  the 
estate,  the  loss  of  judgments  already  recovered,  of  attachments 
and  costs.   "  In  making  this  decision,"  say  the  court,  "  we  apply 

1  AnU,  %  398.  2  Cullerton  v.  Mead,  22  Cal  95. 


LIBERAL   CONSTEUCTION.  563 

an  old  and  unshaken  rule  in  the  construction  of  statutes,  to 
wit,  that  the  intention  of  a  remedial  statute  will  always  jDre- 
vail  over  the  literal  sense  of  its  terms,  and,  therefore,  when  the 
expression  is  special  or  particular,  but  the  reason  is  general, 
the  expression  should  be  deemed  general."  '  An  act  provid- 
ing for  execution  of  powers  in  a  will,  by  the  successor  of  an 
executor,  for  sale  of  lands  for  purposes  of  the  will  and  admin- 
istration, is  remedial  and  entitled  to  a  liberal  construction.- 
The  statute  which  renders  void  bequests  to  witnesses  was  in- 
tended to  prevent  wills  from  becoming  nullities  by  reason  of 
any  interest  in  witnesses  to  them,  created  entirely  by  the  wills 
themselves.  A  wife  of  a  legatee  is  within  the  mischief  on  ac- 
count of  the  unity  of  husband  and  wife,  in  legal  contempla- 
tion, and  statutes  concerning  wills  being  subject  to  liberal 
construction,  a  bequest  in  a  will  so  witnessed  is  void  and  the 
will  properly  attested.^ 

§  437.  Statutes  are  remedial  which  are  intended  to  promote 
the  convenience  of  suitors.*  So  are  statutes  to  improve  the 
procedure  for  obtaining  legal  redress,  so  far  as  the  rights  of 
another  party  are  not  unduly  prejudiced.^  A  statute  declared 
that  it  should  be  lawful  for  any  one  w^ho  had  a  cause  of  action 
against  an  insurance  company  "  to  bring  suit  in  any  county 
where  the  property  insured  may  be  located."  Its  language 
did  not  apparently  include  life  and  accident  insurance  com- 
panies, both  of  which  were  equally  within  the  mischief  that 
required  a  remedy,  and  a  supplemental  act  was  passed,  enact- 
ing that  all  provisions  of  the  former  act  "  shall  apply  to  life 
and  accident  insurance  companies."  This  was  construed  to 
authorize  suits  to  be  brought  in  the  counties  where  the  person 
insured  resided  —  where  the  subject  of  the  risk  insured  against 
was  domiciled  or  located.^    The  requirement  that  a  trial  judge, 

1  Brown    v.  Pendergast,  7    Allen,  -  Drayton  v.  Grimke,  1  Bailey's  Eq. 

427,  citing  Co.  Lit.  245;  Beawfage's  392. 

Case,  10  Co.  101b;  Dwarr.  on  St.  2d  s  Winslow  v.  Kimball,  25  ]\Ie.  493. 

ed.    616;    Whitney    v.  Whitney,   14  ^  Hoguet  v.  Wallace,  28  N.  J.  L. 

Mass.  92,  93 ;  People  v.  Utica  Ins.  Co.  523 ;    Griffin   v.   Leshe,   20    Md.   15 ; 

15    John.   381;    Crane  v.   Allmg,   2  ]\IitcheU  v.  MiteheU,  1  Gill,  66 ;  Smith 

Green  (N.  J.),  593 ;  Wmslow  v.  Kim-  v.  IMofTat,  1  Barb.  65. 

ball,  25  Me.  495 ;  Murphy  v.  Leader,  s  Sunonton  v.   Barrell,   21    Wend. 

4  Lrish  L.  143 ;  Jebb  &  Bourke,  75 ;  1  363 ;  Sprowl  v.  Lawrence,  33  Ala.  674. 

Kent's  Com.  Gtii  ed.  461,  463.  •>  Quinn  v.  Fidehty  Ben.  Asso.  llO 

Pa  St.  382. 


564  LIBERAL   CONSTRUCTION. 

on  the  request  of  either  party,  file  his  charge  to  the  jury  of 
record  in  the  cause,  when  complied  with,  makes  the  charge  a 
part  of  the  record  without  anything  more ;  it  is  not  necessary 
to  embody  it  in  a  bill  of  exceptions  to  make  it  a  part  of  the 
record  on  error.'  The  statute  allowing  a  defendant  in  eject- 
ment to  set  off  the  value  of  improvements  against  mesne  prof- 
its is  remedial.-  A  statute  requiring  a  court  having  power  to 
issue  a  commission  in  the  nature  of  a  writ  de  lunatico  inqui- 
rendo,  to  decide  and  direct  who  shall  pay  all  the  costs  attend- 
ant upon  the  issuing  and  execution  of  such  commission,  was 
held  remedial,  and  to  be  construed  accordingly.*  A  statute 
authorizing  an  oflBcer  of  a  municipal  corporation  to  take  all 
proper  and  necessary  means  to  open  and  reverse  judgments 
which  he  has  reason  to  believe  had  been  obtained  by  collu- 
sion, or  founded  in  fraud,  is  a  beneficial  act,  intended  to  pro- 
tect the  treasury  against  fraud,  and  should  be  very  liberally 
construed ;  it  was  held  that  the  officer  need  not  disclose  what 
has  caused  him  to  so  believe.*  Where  a  justice  of  the  peace 
of  another  town  in  the  same  county,  next  adjoining  the  resi- 
dence of  the  plaintiff,  has  jurisdiction  to  try  an  action,  two 
towns  contiguous  at  either  corner  are  adjoining  towns  within 
the  meaning  of  the  statute,  in  the  absence  of  any  legal  defini- 
tion to  show  what  distance  the  junction  of  two  towns  must  con- 
tinue in  order  to  adjoin.^ 

§  438.  Acts  which  promote  the  pubhc  convenience  in  crimi- 
nal prosecutions  and  involve  no  hardship  or  injustice  to  the  ac- 
cused are  remedial.  A  statute  which  provided  that  "  when  a 
person  shall  commit  an  offense  on  board  of  any  vessel  or  float 
he  may  be  indicted  for  the  same  in  any  county  through  any 
part  of  which  such  vessel  or  float  may  have  passed  on  that 
trip  or  voyage,"  was  held  not  confined  to  that  part  of  the 
trip  or  voyage  which  had  been  performed  before  the  offense 
was  committed,  but  extended  to  the  entire  trip.^  Where  a 
vessel  had  started  on  her  voyage,  and  it  was  still  intended  to 
prosecute  it,  though  when  the  offense  was  committed  and  for 
two  days  previously  she  was  lying  at  anchor  in  a  river  by  rea- 

1  Downing  v.  Baldwin.  1  S.  &  R.  3  Hassenplug's  Appeal,  106  Pa.  St 
298 ;  Wheeler  v.  Winn,  53  Pa.  St.  122,    527. 

127.  4  Sharp  v.  Mayor,  etc.  31  Barb.  573. 

2  Learned  v.  Corley,  43  Miss.  687,        5  Hohnes  v.  Carley,  31  N.  Y.  290. 
mi.  6  Nash  V.  State,  2  Greene  (la.),  286. 


LIBERAL   CONSTRUCTION.  565. 

son  of  adverse  winds,  it  was  held,  nevertheless,  that  she  was- 
navigating  the  river  within  the  meaning  of  a  statute  relating 
to  offenses  on  board  of  vessels  navigating  any  river.  The 
statute  did  not  define  any  crime  or  fix  the  punishment,  but 
only  changed  the  venue.  It  was  not,  properly  speaking,  a 
penal  statute.  It  was  held  that  the  court  was  not  bound  to 
give  it  such  straitened  construction  as  would  turn  it  into  legal 
nonsense  by  holding  that  it  only  applied  while  the  vessel  was 
moving.^  By  a  general  statute  of  New  Hampshire  a  justice  of 
the  peace  was  given  jurisdiction  to  hear  and  determine  prose- 
cutions and  actions  of  a  criminal  nature  arising  within  his 
county,  where  the  punishment  was  by  fine  not  exceeding  SIO.'^ 
By  another  statute  it  was  provided  that  "  if  any  person  shall, 
wilfully  and  maliciously  commit  any  act  whereby  the  real  or 
personal  estate  of  another  shall  be  injured,  such  person  shall 
be  punished  by  imprisonment  in  the  common  jad  for  a  term 
not  less  than  thirty  days  nor  more  than  one  year,  or  by  a  fine 
not  exceeding  $100,  or  by  both  said  punishments,  in  the  discre- 
tion of  the  court."  *  The  statute  did  not  expressly  designate- 
the  tribunal  to  try  the  offenses  committed  under  it.  The- 
court  say :  *  "  We  cannot  believe  it  to  have  been  the  purpose 
of  the  law-making  power  to  ordain  that  the  minor  offenses 
under  this  act  should  be  sent  in  the  first  instance  to  the  grand 
jury  for  their  investigation,  rather  than  to  the  justices  of  the 
peace  in  the  several  counties  where  they  were  committed.  It 
seems  to  us  that  the  malicious  act  involved  or  implied  in 
destroying  by  poison  twelve  hens  or  chickens  may,  with  en- 
tire propriety,  under  the  general  law  regulating  the  jurisdic- 
tion of  justices  of  the  peace,  be  investigated  and  finally  set- 
tled, and  punished  under  the  decision  of  a  justice  of  the  peace.'^ 
With  a  view  to  judicious  administration  of  justice,  the  court, 
does  not  exclude  from  the  jurisdiction  of  a  justice  all  cases, 
which  arise  under  the  statute,  though  it  prescribes  a  punish- 
ment generally  for  that  class  of  offenses  beyond  the  jurisdic- 
tion of  such  a  court. 

§  439.  Statutory  provisions  in  relation  to  arbitrations  are- 
liberally  construed.^     They  tend  to  advance  the  public  welfare 

1  People  V.  Hulse,  3  Hill,  809.  ■»  In  State  v.  Towle,  48  N.  H.  97. 

2  Rev.  Stat.  18.51,  sec.  1,  ch.  222.  » Tiiskaloosa  Bridge  Co.  v.  Jemison, 
sComp.  St.  1853,  ch.  229,  sec.  19.          83  Ala.   476;  Tankersley  v.  Richard- 


"566  LIBERAL    CONSTRUCTION. 

by  putting  an  end  to  litigation,  and  discouraging  a  multiplicity 
of  suits;  and  the  parties  cannot  complain  of  them  because 
the  arbitrators  are  judges  of  their  own  selection,  and  cannot 
assume  jurisdiction  outside  of  the  submission,  nor  bind  the 
parties  beyond  their  consent,  as  evidenced  by  the  submission.^ 
Where  the  reference  and  award  are  in  substantial  comphance 
with  the  statute,  they  will  be  upheld  as  made  under  it.^  Where 
a  cause  depending  before  a  justice  of  the  peace  was,  by  agree- 
ment of  the  parties,  submitted  to  arbitrators,  who  made  an 
award  which  was  entered  up  in  the  judgment  of  the  court, 
from  which  an  appeal  was  taken,  it  was  held  that  the  award 
was  final  unless  impeached  on  the  grounds  mentioned  in  the 
statute  —  corruption,  want  of  notice,  or  other  misconduct  of 
the  arbitrators.  "  It  is  wholly  unimportant,"  say  the  court, 
"  whether  the  award  is  made  under  the  statute  or  not,  as  it  is 
equally  conclusive  as  an  award  at  common  law,  and  can  only 
be  impeached  "  on  those  grounds.^  The  statute  should  be  liber- 
ally construed ;  but  still  the  parties  acting  under  it  must  sub- 
stantially pursue  its  provisions ;  otherwise  the  award  of  arbi- 
trators cannot  be  made  a  judgment  of  the  court.*  Where  a 
statute  which  provided  a  mode  of  submitting  causes  to  arbi- 
tration enacted  that  each  party  should  choose  one  arbitrator, 
and  by  the  arbitrators  thus  chosen  an  umpire  should  be  se- 
lected, and  it  was  objected  that  the  award  was  not  a  good 
statutory  award,  on  the  ground  that  by  the  terms  of  the  agree- 
ment each  party  appointed  an  arbitrator,  who  then  appointed 
the  thu'd  man,  and  the  cause  was  tried  by  the  three,  in  the  first 
instance,  it  was  held  that  the  objection  went  to  the  form 
merely,  and  was  invahd.^  A  statute  prescribing  certain  forms 
for  submission  to  arbitrators,  and  allowing  parties  to  agree 
that  a  judgment  of  a  court  of  record  designated  in  the  instru- 
ment of  submission  should  be  rendered  upon  the  award,  is 
cumulative,  not  exclusive;  and  an  award  pursuant  to  the 
submission  which  would  have  been  valid  at  common  law, 

son,  2  Stewart,  130 ;  Wright  v.  Bol-  2  id. 

ton,  8  Ala.  548 ;  Mobile  Bay  Road  Co.  v.  3  Wright  v.  Bolton,  8  Ala.  548. 

Yeind,  29  id.  325 ;  Bingham's  Trustees  ^  Owens  v.  Withee,  3  Tex.  161. 

V.  Guthrie,  19  Pa.  St.  418;  Owens  v.  sporshey  v.   Railroad  Co.  16  Tex. 

Withee,  3  Tex.  161.  516. 

1  Tuskaloosa  Bridge  Co.  v.  Jemison, 
83  Ala.  476. 


LIBERAL   CONSTKUCTION.  567 

but  which  does  not  conform  to  the  statute,  will  support  an 
action.' 

§  440.  Statutes  giving  the  right  of  appeal  are  liberally  con- 
strued in  furtherance  of  justice;  such  an  interpretation  as 
•will  work  a  forfeiture  of  that  right  is  not  favored.^  "Where 
the  statute  gave  the  defeated  party  twenty  days  "  after  per- 
sonal notice  of  the  judgment,"  it  was  held  that  the  right  might 
be  exercised  within  that  period  after  he  received  Avritten  no- 
tice from  the  party  recovering  the  judgment.  The  court  say : 
*'  This  does  not  mean  twenty  days  after  he  shall  ascertain  by 
his  own  inquiries  or  investigation  that  such  judgment  exists 
against  him,  but  twenty  days  after  he  shall  receive  personal 
notice  of  the  judgment  from  the  party  himself  in  whose  favor 
the  judgment  was  entered,"  ^  An  act  intended  to  extend  the 
right  of  appeal  is  remedial  and  should  receive  a  liberal  con- 
struction. If  it  provides  a  remedy  in  a  case  where  otherwise 
injustice  might  be  done,  it  should  be  given  effect  in  all  cases 
where  proceedings  have  not  been  had  to  such  an  extent  as  to 
exclude  its  application.'*  A  statute  giving  a  certiorari  was  so 
framed  that  literally  it  was  available  only  to  the  complainant, 
to  review  proceedings  in  the  statutory  action  for  forcible  en- 
try and  detainer.  But  as  it  was  deemed  reasonable  to  extend 
to  the  defendant  the  same  means  for  the  correction  of  errors, 
as  to  the  plaintiff  when  similarly  situated,  the  right  was  held 
reciprocal  and  aUke  demandable  by  either  party .^     Statutes 

1  Browning  v.  Wheeler,  24  Wend,  upon  an  agreement  for  arbiti'ation  at 

258 ;  Diedrick  v.  Richley,  2  Hill,  271 ;  common  law  would  be  to  substitute 

Bumside  v.  "VMiitney,  21   N.  Y.  148.  a  veiy  different  conti'act  from  that 

This  is  not  perhaps  in  any  proper  into  which  he  entered, 
sense  the  result  of  hberal  consti'uc-        -  Houk  v.  Barthold,  73  IncL  21,  25 ; 

tion  of  the  statute,  but  of  the  general  Pearson  v,   Lovcjoy,   53  Barb,   407 ; 

rule  that  a  new  remedy  created  by  Cally  v.  Anson,  4  AVis.  223. 
statute  where  one  exists  at  common        *  Id.     As  to  notice  in  writing  be- 

law  is  cumvdative  unless  a  different  ing  required,  see  Gilbert  v.  Columbia 

intention  is  expressed ;  and  that  the  T.  Co.  3  Johns.   Cas.  107 ;  Miner  v. 

legislature  did  not  intend  to  make  Clark,  15  Wend.  425 ;  Lane  v.  Cary, 

any  innovation  upon    the  common  19  Barb.  539;  Matter  of  Cooper,  15 

law  further  than  the  case  requires.  John.  532 ;  IMcEwen  v.  Moutgojiiery 

Burnside  v.  Whitney,  supra.  In  Deer-  lus.  Co.  5  Hill,  104 ;  People  v.  Croton 

field  V.  Arms,  20  Pick.  480,  an  award  Aqueduct  Board,  26  Barb.  248. 
was  held  wholly  inoperative  in  such        ■•  Converse  v.  Burrows,  2  Minn.  229. 

a  case.     The  court  say  that  to  hold  See  Vigo's  Case,  2 1  Wall.  648. 
the  party  boimd  by  the  submission  as        ^  RusseU  v.  Wheeler,  Hempst  3. 


568  LIBERAL   CONSTKUCTION. 

providing  for  amendment  of  pleadings  and  proceedings  in  the 
courts  are  remedial  and  receive  a  very  liberal  construction.^ 
To  remedy  the  evils  consequent  upon  the  destruction  of  any 
pubhc  record  by  fire  or  otherwise,  a  statute  was  passed.  It 
was  held  remedial  though  it  altered  the  rules  of  evidence,  as 
in  making  an  abstract  of  title  evidence.^ 

§  441.  Statutes  which  confer  or  extend  the  elective  fran- 
chise,^ which  take  away  penalties,*  which  give  compensation 
to  those  whose  property  is  taken  compulsorily,^  statutes  which 
are  in  favor  of  those  on  whom  taxes  are  assessed  or  burdens 
laid,''  or  in  favor  of  those  who  are  subjected  to  prejudice  by 
exercise  of  a  special  privilege  granted  by  law,'  are  remedial 
and  to  be  liberally  construed.  Where  the  intent  is  plain  to 
confer  a  privilege  upon  those  whose  rights  are  to  be  affected 
by  a  statutory  proceeding  in  derogation  of  the  rights  of  pri- 
vate property,  and  the  language  is  doubtful  as  to  the  extent  of 
the  privilege,  it  is  the  duty  of  the  courts  to  give  it  the  largest 
construction  in  favor  of  the  privilege  which  the  language  em- 
ployed will  fairly  permit.^  This  was  declared  of  the  time  or 
period  during  which  assessors  were  required  to  continue  their 
sessions  to  revise  assessments.  The  provision  was  that  they 
should  continue  in  session  "  each  and  every  secular  day  for  the 
period  of  twenty  consecutive  days."  The  court,  regarding  the 
revision  as  a  privilege  to  persons  assessed,  excluded  Sundays.* 
Statutes  providing  a  mode  of  reimbursement  for  outlays  made 
pursuant  to  law  for  the  benefit  of  another  are  favorably  con- 
strued to  make  such  indemnity  effectual.  Thus,  a  compulsory 
process  was  allowed  a  municipal  authority  to  collect  the  cost 
of  work  on  a  sidewalk,  the  owner  having  failed  to  comply  with 
a  direction  to  do  the  work  himself.'"  "  l^o  penalty,"  say  the 
court,  "  is  imposed  on  the  owner,  but  a  remedial  process  is 

1  Fidler  v,  Hershey,  90  Pa.  St.  363 ;    p.  153 ;  Mayor,  etc.  v.  Lord,  17  Wend. 
Bolton  V.   King,   105  id.  78 ;  Dick's    285 ;  affirmed  18  id.  126. 

Appeal,   106  id.  589,  596;   Goods  of  eWliite  Co.  v.  Key,  30  Ark.  603; 

Ptuddy,  L.  R  2  P.  &  D.  330.  Walker  v.  Chicago,  56  lU.  277. 

2  Smith  V.  Stevens,  82  III.  554.  "^  Boston,    etc.   Co.    v.  Gardner,    2 

3  Thompson  v.  Ward,  L.  R.  6  C.  P.  Pick.  33,  37 ;  Finch  v.  Birmingham 
at  p.  353.  Canal  Co.  5  B.  &  C.  820. 

*  Evans  v.    Pratt,   3    M.   &  G.   at        s  Walker  v.  Chicago,  swpra. 
p.  7G7.  Old. 

6  Reg.  V.  St  Luke's,  L.  R.  7  Q.  B.  at       i"  Hudler  v.  Golden,  36  N.  Y.  446. 


LIBERAL   CONSTEUCnON.  56^ 

provided  for  the  purpose  of  securing  simple  indemnity  for  ex- 
penditures lawfully  made  for  his  benefit.  The  statute,  there- 
fore, is  to  be  construed  liberally,  with  a  view  to  the  beneficial 
ends  proposed."  ^ 

§  442.  Statutory  provisions  for  the  protection  of  ofiicers 
employed  in  the  administration  of  justice  in  the  discharge  of 
their  duty  are  remedial,  and  are  to  be  extended  by  construc- 
tion, as  far  as  their  words  will  permit,  to  embrace  all  cases 
within  their  purview.-  An  act  was  intended  to  grant  a  bounty 
to  pioneer  settlers  on  an  exposed  frontier,  but  was  ambiguous 
as  to  the  beneficiaries ;  it  was  resolved  in  favor  of  including  all 
those  equally  within  the  reason  of  the  bounty.'  Section  1594 
of  the  Eevised  Statutes  of  the  United  States  was  derived  from 
an  act  to  promote  the  efficiency  of  the  navy,  and  being  in- 
tended to  enable  the  president,  with  the  advice  and  consent  of 
the  senate,  to  relieve  a  deserving  officer  from  the  consequences 
of  the  findings  of  retiring  boards,  it  should,  it  was  held,  be 
liberally  construed  in  favor  of  justice.*  An  act  legitimating 
bastards  has  been  held  remedial  and  to  be  liberally  construed.^ 
In  New  York,  a  statute  "  for  the  protection  of  married  women  " 
has  been  held  remedial  and  to  be  hberally  construed.^  Patents 
for  inventions  should  be  liberally  construed.''    The  provisions 

^Hudler  v.  Golden,  36  N.  Y.  446.  were  to  be  narrowly  watched,  and  con- 

2  Cook  V.  Clark,  10  Bing.  at  p.  21 ;  stinied  with  a  rigid  adherence  to  their 
Morris  v.  Van  Voast,  19  Wend.  283,  terms,  as  being  in  derogation  of  the 

3  Ross  V.  Barland,  1  Pet.  655.  See  general  rights  of  the  community. 
Roane  v.  Innis,  Wythe  (Va.),  62.  At  present  a  far  more  hberal  and  ex- 

•*  United  States    v.   Burchard,   125  panded  view  of  the  subject  is  taken. 

U.  S.  176.  Patents  for  inventions  are  now  treated 

5  BeaU  V.  BeaU,  8  Ga.  210.  as  a  just  reward  to  rngeniovis  men, 

*>  Billings  V.  Baker,  28  Barb.  343 ;  and  as  higlily  beneficial  to  the  public, 

Goss  V.  Caliill,  42  id  310.  not  only  by  holding  out  suitable  en- 

''Blanchard  v.   Sprague,  3  Sumn.  couragements  to  genius  and  talents 

539.     "Formerly,   in  England,"  said  and    enterprise,    but    as    vdtimatoly 

Judge    Story,   "courts  of  law  were  secm-ing  to  the    whole  communit}' 

disposed  to  indulge  in  very  close  and  great  advantages  from  the  free  com- 

strict  construction  of  the  specLfica-  munieation  of  secrets,  and  ijrocesses, 

tions  accompanying  patents,  and  ex-  and  machtnerj^  which  may  be  most 

pressing  the  nature  and  extent  of  the  impoitant  to  aU  the  great  interests  of 

invention.    This  construction  seems  society,  to  agriculture,  to  commerco 

to  liave  been  adopted  upon  the  no-  and  to  manufactures,  as  well   as  to- 

tion  that  patent-rights  were  in  the  the  cause  of  science  and  art" 
natm-e  of  monopoUes,  and,  tlierefore, 


570  LIBERAL   C0N8TKUCTI0N. 

of  the  act  of  congress  passed  in  1851  to  limit  the  liability  of 
ship-owners,  although  they  change  the  common  law,  are  not 
penal  nor  in  derogation  of  natural  right  so  as  to  require  a 
strict  construction.  They  were  enacted  to  remedy  the  rigor 
of  the  common  law,  and  should  be  construed,  if  not  hberally, 
at  least  fairly,  to  carry  out  the  policy  they  were  enacted  to 
promote;  and  the  term  "any  goods,  wares  or  merchandise 
whatsoever  "  was  held  to  include  baggage.^  The  statutes  re- 
quiring railroad  companies  to  fence  their  roads  are  made  pro 
lono  jnoblico,  and  are  to  be  construed  liberally  to  attain  the  end 
for  which  they  are  enacted.^  But  such  statutes  are  not  to  be 
so  literally  construed  as  to  render  a  railroad  corporation  liable 
for  injuries  occasioned  upon  its  road,  at  a  time  when  the  fence 
is  temporarily  out  of  repair,  without  fault  or  negligence  in 
any  manner  imputable  to  the  company.* 

§  443.  In  construing  a  remedial  statute  which  has  for  its  end 
the  promotion  of  important  and  beneficial  public  objects,  a 
large  construction  is  to  be  given  when  it  can  be  done  without 
doing  actual  violence  to  its  terms ;  and  this  construction  will 
be  given  in  favor  of  a  right  of  appeal  by  a  party  aggrieved,  to 
procure  a  review  of  the  acts  of  officers  who  by  erroneous  ac- 
tion have  improperly  defeated  a  public  improvement.*  And  a 
power  granted  to  a  municipal  corporation  to  enlarge  any  of 
the  slips  in  the  city  is  a  continuing  power ;  and,  being  granted 
to  subserve  the  public  convenience,  and  connected  with  the 
necessary  regulation  and  regular  supply  of  a  rapidly  growing 
city,  should  be  liberally  construed  in  favor  of  the  public  inter- 
est. It  was  held  to  authorize  the  enlargement  by  extending 
the  slips  further  into  the  river  as  Avell  as  widening  them.^  An 
act  empowering  a  company  to  contract  for  purposes  of  pubhc 
advantage  ought  not  to  receive  a  narrow  construction.^  So  a 
law  respecting  public  rights  and  interests,  generally,  should  be 
liberally  construed,  so  as  to  make  it  effectual  against  the  evil 
it  was  intended  to  abate,  when  this  can  be  done  without  de- 
priving any  individual  of  his  just  rights.''  Authority  was  given 

1  Chamberlain  v.  Western  Transp.        *  Wolcott  v.  Pond,  19  Conn.  597. 
Co.  44  N.  Y.  305.  ^  Marshall  v.  Vultee,  1  E.  D.  Smith, 

2Tallman  v.  Syracuse,  etc,  E.  R.  294. 
€o.  4  Keyes,  128.  6  Dover  Gas  L.  Co.  v.  Dover,  7  De  G. 

3  Murray  v.  New  York  Cent.  R.  R.  M.  &  G.  545. 
€o.  4  Keyes,  274.  '  Plowman,  Ex  parte,  53  Ala.  440. 


LIBERAL   CONSTRUCTION. 


571 


to  designate  a  state  paper,  and  to  enter  into  a  contract  with 
the  publisher  for  publication  of  legal  and  other  notices  required 
by  law  to  bo  published  therein.  The  statute  conferring  this 
power  was  held  remedial  and  the  power  a  continuing  one ; 
that  it  was  not  exhausted  by  a  single  exercise.' 

§  m.  Statutes  for  the  prevention  of  fraud  are  remedial  and 
liberally  construed.  Such  is  an  act  to  prevent  an  insolvent 
debtor  from  making  preferences  among  his  creditors.^  "  These 
statutes,"  said  Lord  Mansfield,  "  cannot  receive  too  liberal  a 
construction,  or  be  too  much  extended  in  suppression  of 
fraud."  ^  It  was  held  that  an  English  statute  imposing  a  pen- 
alty on  any  officer  of  a  Imiited  company  who  signs  on  its  behalf 
a  bill  of  exchange  upon  which  its  name  does  not  appear,  and 
also  rendering  him  personally  liable  to  the  holder  of  the  bill. 


1  Weed  V.  Tucker,  19  N.  Y.  423.  De- 
nio,  J.,  said:  "When  we  are  seeking 
to  ascertain  the  intention  of  the  law- 
maker, we  are  to  assume  that  the 
statute  was  designed  to  be  an  ade- 
quate and  final  arrangement  for  the 
pubhc  exigency  which  called  for  its 
enactment.  That  exigency  in  this 
case  was  a  provision  which  should 
secure  the  continued  pubhcation  of 
these  legal  notices,  and  we  are  to  in- 
tend that  the  statutory  provisions 
were  framed  with  a  view  to  accom- 
plish that  result ;  and  not  that  a  tem- 
porally measure  was  in  the  consider- 
ation of  the  legislature,  which,  when 
it  should  fail  from  its  inherent  de- 
fects, could  be  sui^plied  by  fiu'ther 
legislation.  ....  We  disclaim  any 
poAver  to  supply  a  defect  in  it  if  one 
exists.  If  the  language,  reasonably 
construed,  fails  to  carry  out  what  we 
conceive  to  have  been  the  general  in- 
tention of  the  legislature,  it  is  a  casus 
omissus,  which  is  irremediable  hj  the 
courts.  But  when  the  question,  as  in 
this  case,  is  what  the  language  em- 
ployed reaUy  means,  it  is  important 
to  ascertain  from  all  legitimate 
sources  wJiat  the  emergency  or  ])ub- 
lic  necessity  was  wliich  led  to  the 


enactment,  and  we  are  not  to  pro- 
noimce  the  measure  inadequate  witli- 
out  a  faithfvd  endeavor  to  accommo- 
date the  language  to  the  obvious 
intention."  In  another  part  of  the 
opinion  the  learned  judge  further 
said :  "  It  is  a  part  of  the  legal  ar- 
rangements for  carrying  on  the  gov- 
ernment and  providing  for  the  ad- 
ministi-ation  of  justice  among  the 
citizens  of  the  state,  and  is  remedial 
in  its  character.  In  such  cases  the 
inile  is  that,  if  the  words  of  a  statute 
are  not  exphcit,  the  sense  is  to  be 
gathered  from  tlie  occasion  and  ne- 
cessity of  the  law,  the  defect  in  the 
former  law,  and  the  designed  rem- 
edy. It  is  to  be  so  consti'ued  as  most 
eifectuaUy  to  meet  the  beneficial  end 
in  view,  and  to  prevent  a  failure  of 
the  remedy.  It  is  to  be  construed 
liberally,  in  conti'adisliuction  from  a 
merely  verbal  construction  —  largely 
and  beneficially  —  so  as  to  suppress 
the  mischief  and  advance  the  rem- 
edy." 

2TerriIl  v.  Jennings,  1  Met  (Kj-.) 
450 ;  Cadogan  v.  Kennett,  2  Cowp.  at 
p.  434 ;  Bank  of  United  States  v.  Lee, 
13  Pet.  107. 

2  Cadogan  v.  Kennett,  supra. 


572  LIBERAL    CONSTEUCTION. 

■was  partly  remedial  and  partly  penal.^  The  same  construction 
was  placed  on  another  statute  for  preventing  false  and  double 
returns  to  parliament,  which  gave  every  person  grieved  by  a 
false  return  a  right  of  action  against  the  returning  officer.^ 
Such  statutes,  so  far  as  they  inflict  a  penalty  on  the  offender, 
are  strictly  construed ;  but  where  they  act  on  the  offense  by 
setting  aside  the  fraudulent  transaction,  they  are  construed 
liberally.^  An  act  that  no  member  of  the  common  council  of 
a  city,  or  other  officer  of  the  corporation,  should  be  directly 
or  indirectly  interested  in  any  contract,  work  or  business,  the 
price  or  consideration  of  which  was  to  be  paid  from  the  city 
treasury,  was  held  to  apply  to  a  newspaper  owned  by  the  health 
commissioner  of  the  city  and  designated  to  publish  the  proceed- 
ings of  the  common  council.  This  restriction  was  deemed 
highly  salutary.  It  was  designed  to  prevent  persons  employed 
and  appointed  to  promote  and  protect  the  public  interest  from 
being  diverted  from  those  objects  by  the  temptation  of  the 
pecuniary  advantages  they  might  otherwise  secure  to  them- 
selves. The  policy  of  it  is  similar  to  that  which  courts  of 
equity  have,  from  a  high  sense  of  duty,  imposed  upon  all  per- 
sons acting  in  the  capacity  of  trustees.  Instead  of  being  un- 
reasonably restrained  by  construction,  the  provision  should  be 
liberally  applied  for  the  promotion  of  the  end  designed  to  be 
accomplished  by  its  enactment.* 

§  445.  Whenever  a  penal  statute  is  declared  to  be  remedial 
by  a  provision  therein,  as,  for  example,  a  law  against  gaming, 
a  strict  construction  wiU.  not  be  applied.^  "Where  all  civil  laws 
are  required  by  statute  to  be  liberally  construed,  with  a  view 
to  effect  their  objects  and  to  promote  justice,  the  courts  must 
obey  the  statutory  rule ;  nevertheless,  to  authorize  an  attach- 
ment, all  material  requirements  must  be  substantially  comphed 
with.^ 

1  Penrose  v.  Martyr,  E.  B.  &  E.  499.  Ga.  253 ;  Ellis  v.  WMtlock,   10  Mo. 

•^  Wynne  v.  Middleton,  1  Wils.  125 ;  781 ;  Smith  v.  Moffat,  1  Bai-b.  65. 

WUb.  on  St.  234  4  Mullaly  v.  Mayor,  etc.  6  T.  &  C. 

3 1  Black.  Com.  88 ;  Twyne's  Case,  3  168. 

Co.  82b;  Cadogan  v.  Kennett,  2  Cowp.  8  Seal  v.  State,  13  Sm.  &  M.  286. 

432,  434 ;    Gorton  v.  Champneys,   1  ^  Dunnenbaum  v.  Schram,  59  Tex. 

Bing.  at  p.  301 ;  Gumming  v.  Fryer,  281. 
Dudley  (Ga.),  182 ;  Carey  v.  GUes,  9 


CHAPTER  XYI. 

DIRECTORY  .  ND  MANDATORY  STATUTES. 


§  446.  Preliminary  explanation. 

448.  Provisions  as  to  time  generally- 
directory. 

451.  Also  formal  and  incidental 
provisions. 

453.  Statutory  bonds  differing  from 
statute. 


§  454.  Mandatory  statutes. 

458.  Statutes  wliich  confer  new- 
rights,  privileges,  etc. 

460.  Statutes  which  are  in  form 
permissive. 


§  446.  Preliminary  explanation  of  directory  and  manda- 
tory statutes. —  The  consequential  distinction  between  direct- 
ory and  mandatory  statutes  is  that  the  violation  of  the  former 
is  attended  with  no  consequences,  while  a  failure  to  comply 
with  the  requirements  of  the  other  is  productive  of  serious  re- 
sults. This  distinction  grows  out  of  a  fundamental  difference 
in  the  nature,  importance  and  relation  to  the  legislative  pur- 
pose of  the  statutes  so  classified.  The  statutory  provisions 
which  may  thus  be  de])arted  from  with  impunity  without  af- 
fecting the  validity  of  statutory  proceedings  are  usually  those 
which  relate  to  the  mode  or  time  of  doing  that  which  is 
essential  to  effect  the  aim  and  purpose  of  the  legislature  or 
some  incident  of  the  essential  act.^  Directory  provisions  are 
not  intended  by  the  legislature  to  be  disregarded ;  but  where 
the  consequences  of  not  obeying  them  in  ever}^  particular  are 
not  prescribed,  the  courts  must  judicially  determine  them. 
In  doing  so  they  must  necessarily  consider  the  importance  of 
the  punctilious  observance  of  the  pro^dsion  in  question  to  the 
object  the  legislature  had  in  view.  If  it  be  essential  it  is  man- 
datory, and  a  departure  from  it  is  fatal  to  any  proceeding  to 
execute  the  statute  or  to  obtain  the  benefit  of  it. 

§  447.  There  is  no  universal  rule  by  which  directory  provis- 
ions may,  under  all  circumstances,  be  distinguished  from  those 
which  are  mandatory.  Where  the  provision  is  in  affirmative 
words,  and  there  are  no  negative  words,  and  it  relates  to  the 

1  McKune  v.  WeUer,  11  Cal.  49. 


574  DIRECTORY    AND    MANDATORY    STATUTES. 

time  or  manner  of  doing  the  acts  whicli  constitute  the  chief 
purpose  of  the  law,  or  those  incidental  or  subsidiary  thereto,, 
by  an  official  person,  the  provision  has  been  usually  treated 
as  directory.^  Generally,  it  is  so ;  but  it  is  a  question  of  in- 
tention.- Where  a  statute  is  affirmative  it  does  not  neces- 
sarily imply  that  the  mode  or  time  mentioned  in  it  are  exclu- 
sive, and  that  the  act  provided  for,  if  done  at  a  different  time 
or  in  a  different  manner,  will  not  have  effect.  Such  is  the  ht- 
eral  imphcation,  it  is  true ;  but  since  the  letter  may  be  modified 
to  give  effect  to  the  intention,  that  implication  is  often  pre- 
vented by  another  implication,  namely,  that  the  legislature 
intends  what  is  reasonable,  and  especially  that  the  act  shall 
have  effect;  that  its  purpose  shaU  not  be  thwarted  by  any 
trivial  omission,  or  a  departure  from  it  in  some  formal,  inci- 
dental and  comparatively  unimportant  particular.  "  It  would 
not,  perhaps,  be  easy,"  said  Sharswood,  J.,  "to  lay  down 
any  general  rule  as  to  when  the  provisions  of  a  statute  are 
merely  directory,  and  when  mandatory  or  imperative.  AYhere 
the  words  are  affirmative,  and  relate  to  the  manner  in  which 
power  or  jurisdiction  vested  in  a  public  officer  or  body  is  to  be 
exercised,  and  not  to  the  limits  of  the  power  or  jurisdiction  it- 
self, they  may  be  and  often  have  been  construed  to  be  directory  -^ 
but  negative  words  which  go  to  the  power  or  jurisdiction  have 
never,  that  I  am  aware  of,  been  brought  within  the  category."  * 
"  It  is  the  duty  of  courts  of  justice,"  said  Lord  CampbeU,  "  to 
try  to  get  at  the  real  intention  of  the  legislature  by  carefully 
attending  to  the  whole  scope  of  the  statute  to  be  construed."  * 
Lord  Penzance  said :  "  I  have  been  carefully  through  aU  the 
principal  cases,  but,  upon  reading  them  aU,  the  conclusion  at 
Avhich  I  am  constrained  to  arrive  is  this :  that  you  cannot  glean 
a  great  deal  that  is  very  decisive  from  a  perusal  of  these  cases. 
They  are  on  all  sorts  of  subjects.  It  is  very  difficult  to  group 
them  together,  and  the  tendency  of  my  mind,  after  reading 
them,  is  to  come  to  the  conclusion  which  was  expressed  by 
Lord  CampbeU  in  the  case  of  the  Liverpool  Bank  v.  Turner." 

1  In  re  Petition  of  Douglass,  58  Barb.  -  Kellogg  v.  Page,  44  Vt.  356. 

174;   Att'y-Gen'l  v.  Baker,  9  Rich.  3  Bladen  v.  Philadelphia,  60  Pa.  St. 

Eq.  521 ;  State  v.  Harris,  17  Ohio  St.  464,  466. 

608 ;  Bladen  v.  Philadelphia,  60  Pa.  *  Liverpool  Bank  v.  Turner,  30  L.  J. 

St  464  Ch.  380. 


DIKECTOKV    AND    MANDATOKY    STATUTES.  0  (  O 

He  had  said  in  the  same  judgment,  "  I  beUeve,  as  far  as  any 
rule  is  concerned,  you  cannot  safely  go  further  than  that  in 
each  case  you  must  look  to  the  subject-matter,  consider  th© 
importance  of  the  provision,  and  the  rehition  of  that  provision 
to  the  general  object  intended  to  be  secured  by  the  act,  and 
upon  a  review  of  the  case  in  that  aspect  decide  whether  the 
enactment  is  what  is  called  imperative  or  directory."  ^  Unless 
a  fair  consideration  of  a  statute,  directing  the  mode  of  proceed- 
ing of  public  officers,  shows  that  the  legislature  intended  com- 
pliance with  the  provision  in  relation  thereto  to  be  essential  to 
the  validity  of  the  proceeding,  it  is  to  be  regarded  as  directory 
merely.^  Those  directions  which  are  not  of  the  essence  of  the 
thing  to  be  done,  but  which  are  given  with  a  view  merely  to 
the  proper,  orderly  and  prompt  conduct  of  the  business,  and 
by  the  failure  to  obey  which  the  rights  of  those  interested  will 
not  be  prejudiced,  are  not  commonly  to  be  regarded  as  manda- 
tory ;  and  if  the  act  is  performed,  but  not  in  the  time  or  in  the 
precise  mode  indicated,  it  will  still  be  sufficient,  if  that  which 
is  done  accomplishes  the  substantial  purposes  of  the  statute.' 

§  448.  Provisions  directory  as  to  time. —  Provisions  regu- 
lating the  duties  of  public  officers  and  specifying  the  time  for 
their  performance  are  in  that  regard  generally  directory. 
Though  a  statute  directs  a  thing  to  be  done  at  a  particular 
time,  it  does  not  necessarily  follow  that  it  may  not  be  done 
afterwards.*  In  other  words,  as  the  cases  universally  hold, 
a  statute  specifying  a  time  within  which  a  pubhc  officer  is  to 
perform  an  official  act  regarding  the  rights  and  duties  of 
others  is  directory,  unless  the  nature  of  the  act  to  be  per- 
formed, or  the  phraseology  of  the  statute,  is  such  that  the 
designation  of  time  must  be  considered  as  a  hmitation  of  the 
power  of  the  officer.^    And  it  was  accordingly  held  that  a 

1  Howard  v.  Bodington,  L,  R  3  P.  5  People  v.  Allen,  6  Wend.  486 ; 
Div.  211.  Jackson  v.  Young,  5  Cow.  269 ;  Heath, 

2  Jones  V.  State,  1  Kan.  273.  Ex  parte,  3  Hill,  42 ;  "Walker  v.  Chap- 
SNeal  V.  Burrows,   34    Ark.    491;     man,  22  Ala.  116;  Charter  v.  Greame, 

Moimt    V.   Kestei-son,    6    Cold.  452 ;  13  Q.  B.  216 ;  Reg.  v.  Mayor,  etc.  7 

Cheatham  v.  Brien,  3  Head,  552 ;  At-  E.  &  B.  910 ;  Reg.  v.  Ingall,  L.  R.  2 

kmson  v.  Rhea,  7  Humph.  59 ;  Sellars  Q.  B.  Div.   199 ;   Doe  d.   Phillips  v. 

■V.  Fite,  3  Baxt  131.  Evans,  1  Cr.  &  M.  450 ;  Rex  v.  Denby- 

4  Wilson  V.  State  Bank,  3  La  Ann.  shire,  4  East,  142 ;  Pond  v.  Negus,  3 

196.  Mass.   230;  ^Vheeler  v.   Chicago,  24 


576  DIRECTORY    AND    MANDATORY    STATUTES. 

brigade  order,  constituting  a  court-martial,  issued  in  July, 
when  by  the  mihtia  law  it  was  made  the  duty  of  the  com- 
mandant of  the  brigade  to  issue  such  order  on  or  before  the 
1st  day  of  June  in  every  year,  was  vahd.^  A  provision  that 
^n  appeal  bond  be  executed  before  an  appeal  is  perfected, 
when  not  a  part  of  the  essential  steps  to  take  an  appeal,  is  di- 
rectory.- So  is  a  provision  that  an  officer  shall  take  his  official 
oath  within  a  certain  period,^  or  give  his  official  bond,*  even 
where  the  issue  of  a  commission  to  him  is  prohibited  until 
such  bond  is  given ;  ^  for  it  would  be  attended  with  mischievous 
consequences  if  in  such  cases  aU  the  official  acts  of  such  de- 
linquent were  held  void.  His  acts,  if  he  in  fact  filled  the 
office,  would  doubtless  be  valid.  There  could  be  no  collateral 
inquiries  affecting  the  right  of  a  de  facto  officer  to  act.  A 
statute  which  provides  that  commissioners  to  locate  a  county 
seat  shall  meet  at  a  time  and  place  provided  for,  that  a  ma- 
jority shall  constitute  a  quorum  to  do  business,  "and  that  the 
commissioners  may  adjourn  to  some  other  place  or  time,  and 
may  adjourn  from  time  to  time  until  the  business  before  them 
may  be  completed,"  is  directory  merely,  and  the  commission- 
ers have  the  power  to  elect  a  chairman  and  empower  him  to 
tix  the  time  of  the  next  meeting.^ 

§  449.  A  statute  required  the  township  clerk  to  certify  on 
or  before  the  first  Monday  of  October  in  each  year  to  the  su- 
pervisor of  his  township  the  amount  of  the  town  indebted- 
ness growing  out  of  the  payment  of  bounties.  Where  such 
certificate  was  not  made  within  that  period,  but  was  within  a 

IlL  105 ;  Torrey  v.  Millbuiy,  21  Pick.  3  Howland  v.  Luce,  16  John.  135. 

64 ;  Colt  V,  Eves,  12  Conn.  243 ;  People  *  Boykin  v.  State,  50  Miss.  375 ;  Peo- 

V.   Cook,   14   Barb.   259;   Wright  v.  pie    v.   Holley,   12    Wend.    481.     In 

Sperry,  21  Wis.  331 ;  State  v.  Click,  2  Platan  v.  State,  56  Texas,  94,  it  was 

Ala.  2G ;  Limestone  Co.  v.  Rather,  48  held  that  the  statute  requiring  a  party 

Ala.  433 ;  St.  Louis  Co.  Ct  v.  Sparks,  elected  to  office  to  quaUf y  within  a 

10  Mo.  117 ;  Lee  v.  State,  49  Ala.  43 ;  prescribed  period  of  time  will  be  con- 

Hugg  V.  Camden,  39  N.  J.  L.  620;  strued  as  du-ectory  only  in  a  case 

Eustis  V.  Kidder,  26  Me.  97 ;  Lacka-  where,  from  reasons  beyond  liis  con- 

wana  Iron  Co.  V.  Little  Wolf,  38  Wis.  ti'ol,  he  cannot   qualify  within  the 

152 ;  Rex  v.  Leicester,  7  B.  &  C.  6 ;  time  allowed ;  but  such  construction 

Bosanquet  v.  Woodford,  5  Q.  B.  310 ;  will  not  be  given  in  a  case  of  neglect 

Rex  V.  Span-ow,  2  Str.  1123.  or  refusal  to  qualify. 

1  People  V.  Allen,  6  Wend.  486.  »  McBee  v.  Hoke,  2  Speers,  138. 

2  McCarver  v.  Jenkuis,  2  Heisk.  629.  «  Edwards  v.  Hall,  30  Ark.  31. 


DIKECTORY   AND   MANDATORY    STATUTES.  O  i  I 

week  afterwards,  and  seasonably  to  answer  tlio  intended  pur- 
pose, it  was  held  good,  and  the  provision  so  far  directory. 
The  information  Avas  to  enable  the  supervisor  to  include  the 
amount  certified  in  the  tax  levy.^  The  provision  of  the  statute 
requiring  that  grand  jurors  should  "  be  summoned  at  least  five 
days  before  the  first  day  of  the  court "  to  which  they  may  be 
summoned  is  manifestly  merely  dh^ectory  to  the  sheriff  and 
for  the  convenience  of  the  jurors,  that  they  may  have  suffi- 
cient notice  of  the  service  required  of  them.  And  though  it 
may  be  true  that  a  juror  could  not  be  compelled  to  attend  un- 
less so  summoned,  yet  if  he  thinks  proper  to  attend  and  serve 
without  such  notice,  it  constitutes  no  objection  to  the  regular 
organization  of  the  grand  jury.  The  time  of  summoning 
jurors,  except  so  far  as  their  own  convenience  is  concerned,  is 
quite  an  immaterial  thing  which  could  in  no  wise  affect  their  offi- 
cial acts.'-  And  so  of  other  departures  from  the  letter  of  stat- 
utes relating  to  obtaining  jurors.^  It  is  so  of  the  requirement 
that  defendant  in  replevin  be  summoned  to  appear  at  the  next 
term.^  The  provision  requiring  a  judge  who  tries  a  cause 
without  a  jury  to  give  his  decision  on  or  before  the  first  day 
of  the  next  term  is  directory.  It  imposes  a  duty  upon  the 
judge ;  but  as  the  parties  have  no  control  over  his  action,  it 
would  be  a  harsh  construction  which  should  deprive  them  of 
the  fruits  of  the  litigation  because  the  judge  fails  to  decide  by 
a  particular  day.^  So  of  the  requirement  that  the  officer  be- 
fore whom  proceedings  are  had  against  an  absconding,  con- 
cealed or  non-resident  debtor,  shall  make  his  report  within 
twenty  days  after  the  appointment  of  trustees,  and  that  the 
latter  cause  their  appointment  to  be  recorded  within  thirty 
days.^  The  omission  of  a  justice  of  the  peace  to  file  his  return 
to  an  appeal  within  the  time  required  by  law  is  not  fatal. 
The  appellate  court  will  have  jurisdiction  of  the  case  if  the 
return  is  made  after  the  time  so  prescribed.'     A  statute  spe- 

1  Smith  V.  Crittenden,  16  Mich.  152.  *  Jolmson.  Ex  parte,  7  Cow.  424 

2  Johnson  v.  State,  33  I\Iiss.  363.  ^  Rawson  v.  Paj-sons,  6  Mich.  401 ; 

3  State    V.   Carney,    20    Iowa,    82 ;  Wood  v.  Chapin,  13  N.  Y.  509 ;  Fraser 
State  V.  Pitts,  58  Mo.  556:  State  v.  v.  Willey.  2  Fla.  116. 

Gillick,  7  Iowa,  287 ;  State  v.  Smith,        **  Wood  v.  Chapin,  18  N.  Y.  509. 
€7  Me.  328;   Huecke  v.   Milwaukee        '  Kellogg,  Ex  parte,  3  Cow.  372. 
City  R'y  Co.  69  Wis.  401 ;  Birchard  v. 
Booth,  4  id.  67. 
87 


5  78  DIKECTOET    AND   MANDATORY   STATUTES. 

cified  a  time  for  trustees  to  make  a  sale  of  trust  property; 
this  was  held  directory,  and  that  a  sale  made  afterwards  was 
good  and  passed  the  title.^  A  statute  requiring  a  court,  on 
the  first  day  of  a  term,  to  assign  cases  for  trial  on  particular 
days,  was  held  directory.-  If  a  statute  direct  a  tax  to  be  levied 
at  a  given  time  and  it  is  omitted,  it  may  be  levied  at  a  differ- 
ent time.*  Where  a  special  act  was  passed  in  relation  to  the 
presentation  of  cei'tain  claims,  otherwise  not  allowable,  and 
requiring  them  to  be  presented  within  thirty  days,  and,  there- 
fore, made  a  distinction  between  such  claims  and  ordinary 
ones  as  to  the  time  of  presentment,  it  was  held  mandatory ; 
that  the  presumption  was  that  such  limitation  as  to  time  was 
material  to  be  followed."* 

§  450.  The  assessors  of  a  school  district  were  du-ected  by  a 
statute  to  assess  the  district  tax  within  thirty  days  after  the 
clerk  had  certified  the  vote  for  raising  the  tax,  and  it  was  held 
to  be  merely  directory,  as  there  were  no  negative  words  in  the 
statute  limiting  their  power  to  make  the  assessment  afterwards.^ 
A  statute  requu^ed  ward  inspectors  of  a  city  to  certify  the 
result  of  the  ward  elections,  on  the  day  subsequent  to  the  clos- 
ing of  the  polls,  or  sooner.  It  was  held  that  their  certificate 
was  valid  although  it  was  not  made  tiU  the  second  day  after 
tiie  closing  of  the  poUs.^  The  statutory  requirement  that  the 
polls  of  election  be  closed  at  sunset  has  been  held  to  be  direct- 
ory.'^ A  certificate  was  required  to  be  made  out  immediately, 
and  though  one  was  made  seven  months  afterwards,  it  was 
received  in  evidence,  and  the  election  held  good.^  The  time 
mentioned  by  statute  within  which  swamp  lands  granted  by 
congress  to  Oregon  should  be  selected  was  held  not  imperative, 
there  being  no  hmitation  of  the  power  of  the  selecting  officer.* 

1  Savage  v.  Walshe,  26  Ala.   019,    2Demo,  160;  Pond  v.  Negus,  3  Mass. 
631.  230. 

2  People  V.  Doe,  1  Mich.  451.  *  Corbett  v.  Bradley,  7  Nev.  106. 
9  State  V.  HaiTis,  17  Ohio  St.  608 ;        5  Pond  v.  Negus,  3  Mass.  230. 

State  V.  Horner,  34  Md.  569 ;  State  v.  Co.  «  Heath,  Ex  parte,  3  Hill,  42. 

Ck)ni'rs,  29  id.  516 ;  Tuohy  v.  Chase,  30  ^  Holland  v.   Davies,  36  Ark.  446 ; 

CaL  524 ;  Shaw  v.  Orr,  30  Iowa,  355 ;  Swepston  v.  Barton,   39  id.  549 ;  Fry 

People  V.  Lake  Co.  33  CaL  487 ;  Peo-  v.  Booth,  19  Oliio  St.  25. 

pie  V.  Rochester,  5  Lans.  11 ;  Corbett  ^  People  t.  Peck,  11  Wend.  604 

V.  Bradley,  7   Nev.    106 ;    Looney  v.  9  Gaston  v.  Stott,  5  Oregon,  48. 
Hughes,  30  Barb.  605 ;  Gale  v.  Mead, 


DIRECTORY   AND    MANDATORY    STATUTES.  579 

§  451.  Formal  aiul  iiiculental  reij[iiirements  directory. — 

Statutes  directing  the  mode  of  proceeding  by  public  officers  are 
directory,  and  are  not  to  be  regarded  as  essential  to  the  valid- 
ity of  the  proceedings  themselves  unless  so  declared  in  the 
statutes.^  In  People  v.  Cook  -  the  court  say :  "  Statutes  direct- 
ing the  mode  of  proceeding  of  public  officers  are  directory,  and 
are  not  to  be  regarded  as  essential  to  the  validity  of  the  pro- 
ceedings themselves,  unless  it  be  so  declared  in  the  statute." 
The  qualification  further  on  in  the  opinion  is :  "  Unless  there  is 
something  in  the  statute  itself  which  plainly  shows  a  different 
intent."  As  said  by  Cobb,  C.  J. :  *  "  The  first  rule  appears 
.  .  .  inaccurate.  The  words  '  unless  it  be  so  declared  in 
the  statute '  seem  to  require  an  express  declaration  that  di- 
recting the  manner  is  essential,  however  important  and  essen- 
tial a  just  view  of  the  policy  of  the  statute  may  show  such 
provisions  to  be."  The  learned  chief  justice  added :  "  The  rule 
secondly  stated  contains  probably  all  that  the  learned  justice 
intended  to  say  in  the  first,  and  as  a  general  proposition  is 
doubtless  correct.  But  the  intent  to  make  such  provision  es- 
sential may  appear  as  well  by  the  general  scope  and  policy  of 
the  statute  as  by  a  direct  averment.  In  other  words,  unless  a 
fair  consideration  of  the  statute  shows  that  the  legislature  in- 
tended compliance  with  the  provision  in  relation  to  the  man- 
ner to  be  essential  to  the  validity  of  the  proceeding,  it  is  to  be 
regarded  as  directory  merely."  This  view  was  well  illus- 
trated by  the  case  in  which  this  language  was  used.  There 
was  a  statutory  provision  relating  to  a  special  election  for  se- 
lecting a  county  seat  in  these  words :  "  If  upon  the  canvassing 
of  said  votes  by  said  commissioners  they  shall  find  that  no 
place  has  received  a  majority  of  all  the  votes  cast,  it  shall  be 
their  duty  to  proclaim  the  same,  and  also  the  time  of  the  sec- 
ond election,  as  herein  provided ;  and  the  canvass  of  the  votes 
of  the  second  election  and  the  proclamation  of  the  result  shall 
be  the  same  as  at  the  first."  In  a  case  where  there  was  no 
choice  at  the  first  election,  and  a  second  election  was  held 

1  People  V.  Cook,  14  Barb.  259,  390 ;  3  in  Jones  v.  State,  1  Kan.  273,    See 

HoUaud  V.  Osgood,  8  Vt  280 ;  Corliss  Westbrook  v.   Rosborough,   14    CaL 

V.  Corliss,  id.  373 ;  Holding,  Ex  parte,  180;  Kenfield  v.   Irwin,  52  id   164; 

5  J  Ala.  458.  People  v.  Thompson,  G7  id,  627. 

2 14  Burb.  259. 


580  DIRECTOEY   AND   MANDATOET    STATUTES. 

without  a  proclamation,  the  court  held  the  provision  impera- 
tive, and  that  there  was  no  authority  to  hold  the  second  elec- 
tion without  it.  It  was  an  important  and  necessary  provision. 
"  "Without  it,"  said  the  chief  justice,  "  the  law  provided  no 
means  for  informing  the  people  that  any  second  election  was 
to  be  held  for  the  location  of  the  seat  of  justice,  and  man};^  oi 
them  might,  and  some  of  them  probably  would,  know  nothing 
about  it.""  A  statute  required  the  reading  and  signing  of  the 
minutes  of  the  board  of  supervisors.  This  was  held  merely 
du-ectory,  but  it  should  be  scrupulously  observed;  and  the 
omission  to  do  so,  though  it  may  indicate  perhaps  carelessness, 
if  not  incapacity,  does  not  affect  the  validity  of  the  proceed- 
ings.' A  statute  relating  to  docketing  judgments  by  tran- 
script has  been  held  directory  as  to  clerical  particulars.- 

It  was  provided  that  "  no  judgment  shall  affect  any  lands, 
tenements,  real  estate  or  chattels  real,  or  have  any  preference 
as  against  other  judgment  creditors,  purchasers  or  mortgagees 
until  the  record  thereof  be  filed  and  docketed  as  herein  di- 
rected." Those  directions  were  that  the  clerk,  at  the  time  of 
filing  the  record,  enter  in  an  alphabetical  docket  a  statement 
of  the  judgment,  containing  among  other  things  the  hour 
and  day  of  entering  the  same.  By  another  act  the  clerk,  on 
request  and  payment  of  fees,  was  required  to  furnish  a  tran- 
script containing  all  the  facts  necessary  to  make  a  perfect 
docket  of  the  judgment ;  and  on  presenting  the  transcript  to 
the  clerk  of  any  other  county,  it  was  his  duty  to  file  the  same 
and  docket  the  judgment,  specifying  among  other  particulars 
the  day  and  the  hour  on  which  the  judgment  was  perfected, 
and  the  day  and  hour  of  docketing  the  same.  By  a  subsequent 
act,  which  was  the  subject  of  construction,  it  was  declared 
that  "  no  judgment  or  decree  which  shall  be  entered  after  this 
act  takes  effect  shall  be  a  lien  upon  real  estate,  unless  the  same 
shall  be  docketed  in  books  to  be  provided  and  kept  for  that 
purpose  by  the  county  clerk  of  the  county  where  the  lands  are 
situate."  It  was  held  that  an  error  in  the  statement  of  the 
date,  amount,  etc.,  which  would  be  amendable  by  the  court  in 
which  the  judgment  was  rendered  would  not  vitiate  the  lien 
of  such  judgment  as  against  persons  who  have  not  been  act- 
ually misled  and  prejudiced  thereby.    "  It  could  not,  I  think," 

1  Arthur  v.  Adam,  49  Miss.  404.  2  gears  v.  Bumham,  17  N.  Y.  445. 


DIRECTORY    AND   MANDATORY    STATUTES.  581 

said  Strong,  J.,  "have  beeu  the  intention  of  tlie  legislature, 
by  any  of  the  provisions  in  regard  to  the  docketing  and  lien  of 
judgments,  to  require  a  strict,  literal  compliance  in  every  par- 
ticular with  the  requirements  as  to  the  contents  of  the  docket, 
in  order  that  the  judgment  nuiy  be  a  lien  on  lands  as  against 
other  incumbrances.  If  such  a  compliance  was  necessary,  a 
variance  of  a  day  or  hour  as  to  time,  or  a  single  penny  as  to 
the  amount  of  the  judgment,  would  vitiate  the  docket  and 
render  it  a  nullity  as  to  securing  a  preference  over  other  in- 
cumbrances. A  substantial  observance  of  those  requirements, 
having  reference  to  the  object  the  legislature  had  in  view  of 
affording  information  to  all  who  might  be  affected  by  the 
judgment,  I  am  satisfied  is  all  that  was  designed  or  is  neces- 
sary. Those  provisions  are  merely  directory- ;  and  omissions 
and  variances  which  cannot  work  any  prejudice  are  immaterial. 
It  is  for  the  court  so  to  administer  the  provisions  as  to  the 
docketing  and  lien  of  judgments  as  carefully  to  secure  the  in- 
formation designed  to  be  given,  and  at  the  same  time  to  pro- 
tect the  judgment  creditor  from  the  loss  of  his  preference  on 
■  account  of  slight  omissions  and  defects  entirely  unessential  to 
the  docket  for  the  purpose  of  such  information."  ^ 

§  452.  The  clause  in  the  constitution  requiring  the  supreme 
court  of  appeals  to  "  decide  every  point  fairly  arising  upon 
the  record,  and  give  its  reasons  therefor  in  writing,"  is  direct- 
ory and  does  not  affect  the  common-law  doctrine  of  res  ju- 
dicata. The  court  say:  "  Notwithstanding  that  clause  in  the 
constitution,  if  the  points  are  involved  in  the  issue,  they  are 
7'es  judicata,  although  not  mentioned  in  the  opinion  of  the 
court  or  noticed  by  counsel  on  either  side.  That  clause  of  the 
constitution  is  merely  directory  to  the  court,  and  it  ought  to 
be  followed ;  but  it  does  in  no  wise  change  the  common-law 
rule  as  to  the  doctrine  of  res  judicata.  The  contrary  doctrine 
would  lead  to  endless  litigation ;  and  no  suitor  could  know 
when  his  controversy  was  terminated.  There  would  be  any- 
thing but  repose  in  such  a  construction  of  the  constitution  as 
that."  -  A  statute  requiring  the  instructions  to  the  jury  to 
be  in  writing  is  directory,  and  the  violation  thereof  cannot 

1  See  Hunt  v.  Grant.  19  "WencL  90,    from  $:1.000  to  $30,000.     Hart  v.  Rey- 
where  a  docket  was  amended  nunc    nolds,  3  Cow.  42,  note. 
pro  tunc  by  increasing  the  amovmt        -' Heurv  v.  Davis,  13  W.  Va.  230. 


582  DIKECTOET   AND   MANDATORY    STATUTES. 

be  assigned  as  error  in  Texas,  though  the  rule  is  otherwise 
in  some  states.^  So  is  a  provision  that  the  judge  shall  cau- 
tion the  jury. 2  Under  a  statute  providing  a  remedy  by  the 
verdict  of  a  jury  for  the  undervaluation  of  land  by  highway 
commissioners,  the  verdict  Avas  required  to  be  certified  by  the 
justice  who  issued  the  summons.  His  duties  in  the  premises 
were  of  a  ministerial  character.  He  had  no  control  of  the 
proceedings.  He  was  not  to  preside,  or  to  direct  the  admis- 
sion or  exclusion  of  evidence,  as  on  a  trial  before  him.  His 
duties  were  limited  to  issuing  a  summons,  drawing  the  names 
of  six  jui'ors,  swearing  them  and  witnesses,  and  finally  certify- 
ing the  verdict.  The  statute  prescribed  no  penalty,  and  im- 
posed no  forfeiture  in  case  of  non-compliance  with  its  provis- 
ions. There  was  no  declaration  that  the  verdict  should  be 
void  for  failure  to  comply  with  them.  It  was  held  that  the 
verification  of  the  verdict  was  not  incapable  of  being  certified 
in  other  ways  as  w^ell  as  by  the  justice  w^ho  issued  the  sum- 
mons. It  was  a  formal  matter,  because  it  proved  nothing 
that  could  not  be  proved  in  other  ways  as  satisfactorily.  Its 
omission  could  work  no  prejudice  to  the  certainty  of  the  pro- 
ceeding. The  affidavit  of  some  of  the  jurors,  or  the  certificate 
of  another  justice,  would  accomphsh  the  same  purpose  prac- 
tically. The  proper  and  just  re-assessment  and  the  verdict 
were  the  essential  matters,  and  could  not  be  dispensed  with ; 
but  the  certificate  was  a  matter  of  form,  which  could  be  sup- 
plied by  other  evidence  without  prejudice  to  any  one.  The 
misconduct  or  mistake  of  a  public  officer  in  a  matter  of  mere 
form  should  not  prevent  the  attainment  of  right  and  justice. 
The  requirement  that  the  justice  who  issued  the  summons 
should  certify  the  verdict  was  held  directory.^  By  statute 
no  ordinance  providing  for  subscription  by  parishes  and  mu- 
nicipal corporations  to  the  stock  of  corporations  undertaking 
works  of  internal  improvements  was  valid  until  approved 
and  ratified  by  a  majority  of  the  voters  on  whose  property  the 
tax  w^as  proposed  to  be  levied.  For  the  purpose  of  facilitating 
the  taking  of  this  vote,  a  certified  list  of  such  voters  was  to 

1  Galveston,  etc.  E'y  Co.  v.  Dunlavy,        2  Thompson  v.  State,  26  Ark.  323. 
56  Tex.  2o6.     Contra,  Penberthy  v.        3  People  v.  Supervisors,  34  N.  Y.  268. 
Lee,  51  "Wis.   261 ;    Householder   v. 
Granby,  40  Ohio  St  430. 


DIRECTORY    AND   MANDATORY    STATUTES.  583 

be  furnished  to  commissioners.  This  list  was  not  furnished  in 
a  particular  case,  and  its  omission  was  urged  as  a  fatal  objec- 
tion to  a  subscription  })ursuant  to  a  favorable  vote  on  a  sub- 
mission of  the  question.  The  court  held  that  the  provision 
requiring  it  was  directory  and  not  a  condition  precedent. 
^'  When  a  formality  is  not  absolutely  necessary,"  say  the 
court,  "for  the  observance  of  justice,  but  is  introduced  to  fa- 
cilitate its  observance,  its  omission,  unless  there  is  an  annul 
ling  clause  in  the  law,  will  not  annul  the  act."  ^ 

The  requirement  that  the  inspectors  of  a  corporate  election 
be  sworn,  in  the  absence  of  a  nullifying  clause  on  account  of 
the  omission,  was  held  directory ;  that  the  election  was  not  in- 
validated by  the  failure  of  the  officers  to  be  sworn.'-  A  statu- 
tory provision  that  the  clerk  of  the  district  give  notice  of  the 
annual  meetings  was  merely  directory,  and  that  the  proceed- 
ings after  the  meeting  were  valid  although  no  notice  was 
given.'  A  board  of  canvassers  cannot  reject  a  poll  book  on 
account  of  its  being  transmitted  to  the  clerk  through  one  not 
an  elective  officer.  Statutes  concerning  the  manner  of  con- 
ducting elections  are  directory  unless  the  non-com])liance  is 
expressly  declared  to  be  fatal  to  the  vahdity  of  the  election  or 
will  change  or  make  doubtful  the  result.^  The  sheriff  was  di- 
rected by  statute,  upon  making  a  sale  of  real  estate,  to  file  his 
certificate  of  sale  in  the  clerk's  office ;  the  statute  was  held  di- 
rectory, and  that  his  omission  to  file  it  did  not  prejudice  the 
proceedings.^  So  a  statute  requii'ing  the  vote  of  the  common 
council  upon  a  resolution  opening  streets  in  a  city  to  be  taken 
by  ayes  and  nays  was  held  director3\'^  Statutory  provisions 
as  to  drawing  jurors  for  a  trial  are  directory,  and  irregularities 
therein,  when  not  objected  to  at  the  time,  are  waived.'  Provis- 
ions requiring  a  sheriff  to  note  on  an  execution  the  day  of  its 
receipt,*  requmng  him  to  make  a  levy  in  the  presence  of  two 
witnesses,^  requiring  the  secretary  of  state  to  publish  the  act 

1  New  Orleans  v.  St.  Romes,  9  La.  *  Wilf ord  t.  State,  43  Ark.  63 ;  Mc- 
Ann.  573.  Crary  ou  Elections,  §  200. 

2  Matter  of  Mohawk,  etc.  R  R  Co.  » Jackson  v.  Young,  5  Cow.  269. 
19  Wend.  143.  «  Striker  t.  KeUy,  7  Hill,  9. 

8  Marchant  v.  Longworthy,  6  Hill,        '  Cole  v.  Perry.  6  Cow.  584. 
'646 ;  S.  C.  3  Denio,  526.  8  Hester  v.  Keith.  1  Ala.  (N.  S.)  316. 

9  Davidson  v.  Kiiliu,  1  Disney,  405. 


584  DIKECTORY    AJfD   MAXDATOKY    STATUTES. 

against  dueling  three  montlis,'  are  directory.  A  statute  whicli 
provided  how  a  levy  should  be  made  v;hen  the  defendant  in 
execution  failed  or  refused  to  point  out  property  was  held 
directory ;  that  is,  that  he  should  levy  first  on  personal  or 
movable  property,  then  on  uncultivated  lands,  and  lastly  on 
improved  lands,  establishing  that  order.  Though  the  failure 
to  make  a  levy  as  required  by  statute  might  be  sufficient  in  a 
particular  case,  properly  presented,  to  set  aside  the  levy  and 
make  the  officer  liable  in  damages,  the  sale  would  not  neces- 
sarily be  Yoid.^  The  provision  in  the  code  as  to  advertising 
the  adjournment  of  the  supreme  court  is  directory  to  the 
clerk,  and,  if  not  complied  with,  still  the  court  may  be  held  at 
the  time  fixed  in  the  order  of  adjournment,  and  a  party  not 
prejudiced  by  the  omission  of  the  clerk  cannot  complain.^ 
Compliance  with  a  requirement  to  make  a  plan  for  the  drain- 
age of  the  whole  city  is  not  imperative  or  a  condition  prece- 
dent to  the  power  of  contracting  for  work  in  any  of  the 
sewerage  districts.^  Failure  of  the  tax  assessor  to  pin  to  the 
assessment  roll  the  affidavit  prescribed  by  statute  does  not  so 
vitiate  the  assessment  roll  as  to  render  nugatory  all  subse- 
quent proceedings  with  reference  to  it  and  all  the  sales  for 
taxes  under  it.  It  is  manifest  that  the  purpose  of  the  legisla- 
ture was  to  make  all  such  requirements  as  this  directory  and 
not  mandatory  in  the  sense  that  failure  to  observe  them  will 
annul  subsequent  proceedings.  The  court  say :  "  This  affidavit 
is  requu'ed  to  be  made  after  the  completion  of  the  assessment 
roll  as  an  additional  guaranty  to  his  oath  of  office  to  secure 
the  performance  of  the  duty  of  the  assessor  in  the  particular 
matters  to  which  the  affidavit  relates.  It  was  assumed  that  ia 
order  to  be  able  to  make  the  required  affidavit  the  assessor 
would  act  as  it  suggests  to  be  necessary  in  order  to  make  it 
])erfectly,  and  it  was  admonitory  to  him  as  weU  as  a  guide  to 
the  board  of  supervisors  as  to  what  was  required  of  him. 
There  is  nothing  to  suggest  a  purpose  in  the  legislature  to 
make  the  required  affidavit  a  condition  of  the  validity  of  the 
assessment  or  essential  to  the  jurisdiction  of  the  board  of  su- 
pervisors to  deal  with  the  rolls  as  the  law  directs.     On  the 

1  State  V.  CUck,  2  Ala.  26.  *  Matter  of  N.    Y.   Prot.   E.   Pulx 

2  Pearson  v.  Flanagan,  52  Tex.  266.     School,  47  N.  Y.  556. 

3  Wise  V.  State,  34  Ga.  348. 


DIRECTORY   AND    MANDATORY    STATUTES.  5S5 

contrary,  we  think  the  manifest  purpose  of  the  legislature  Avas 
to  make  al]  such  requirements  directory  and  not  mandatory 
in  the  sense  that  failure  to  observe  them  will  annul  subsequent 
proceedings." '  The  statute  is  directory  in  requiring  the  board 
of  police  to  take  deeds  of  trust  on  real  estate  to  secure  the  re- 
payment of  loans  of  the  common  school  fund,  and  makes  it  the 
plain  duty  of  the  board  to  do  so.  But  it  does  not  make  void 
a  note  given  for  such  loan  not  secured  b}^  a  trust-deed. - 

§  453.  Statutory  bonds  uot  coiiforniinn?  with  statute. —  In 
the  absence  of  negative  words  a  bond  diU'ering  in  form  and 
mode  of  execution  from  what  is  required  by  statute,  but  con- 
taining substantially  the  required  conditions,  is  vaUd.  Eefer- 
ring  to  the  official  bond  of  a  sheriff,  Cooley,  J.,  said :  "  If  the 
several  duties  which  the  sheriff  is  called  upon  to  perform  could 
only  arise  because  of  the  statute  requiring  the  giving  of  the 
bond,  there  would  be  abundant  reason  for  saying  that  until  a 
bond  in  conformity  with  the  statute  was  produced  no  recovery 
could  be  had.  But  this  statute  does  not  impose  the  duties ; 
they  would  be  the  same  if  no'official  bond  were  required;  and 
a  sheriff  de  facto  is  charged  with  them  under  the  same  circum- 
stances as  is  the  sheriff  dejure.  It  needs  no  statute  to  enable 
the  officer  to  give  a  valid  bond  to  perform  any  such  duty ;  and 
had  B.  executed  to  H.  and  R.  a  common-law  bond,  conditioned 
that  he  would  duly  levy  and  return  the  execution  they  placed 
in  his  hands,  there  could  have  been  no  doubt  of  its  validit}^^ 
When  a  party  gives  a  bond  that  he  may  have  some  privilege 
or  right,  as  an  office,  appeal,  supersedeas,  or  the  like,  and  he 
has  the  benefit  as  upon  having  given  the  bond  required  by  law, 
he  cannot  afterwards  avoid  responsibility  upon  it  because  he 
has  dej)arted  in  some  particular  from  the  statutory  form,  or 
omitted  some  formality  in  execution,  approval  or  filing.*    An 

1  Chesnut  v.  Elliott,  61  Miss.   569 ;  Marsh.  416 ;    Governor  v.    Allen,    8 

Fifield  V.  Marinette  Co.  63  Wis.  532,  Iiumph.  176 ;  MontvUle  v.  Haughton,. 

modifying  Marsh  v.  SupervLsoi-s,  43  7  Conn.  543 ;  Commonwealth  v.  Wol- 

id.  503,  and  other  cases  in  Wisconsin  bert,    6    Binn.   293.     See    People    v. 

to  the  contrary.  Mitchell,  4    Sandf.   466 ;    People    v. 

'-  Acts  of  1854,  ch.  345,  and  of  1856,  Meighan.  1  Hill,  298 ;  Ai-mstrong  v. 

cIl  27 ;  Gaines  v.  FarLs,  39  Jliss.  403.  United  States,  1  Pet  C.  C.  46 ;  Van 

See  State  v.  State  Bank,  5  Ind.  356.  Deusen  v.  Hajn^ard,  17  Wend-  67. 

3  Bay  Co.  v.  Brock,  44    Mich.  45 ;  *  Id. ;  Hester  t.  Keith,  1  Ala.  (N.  S.) 

United  States  v.  Tingey,  5  Pet  115;  316;  Bartlett  v.  Board,  59  111.  3C4- 

Thompson  v.   Buckhauuou.  3    J.    J.  Supervisoi-s  v.  Kaime,  39  Wis.  468. 


5S6  DIKECTOET   AXD   MAXDATOKY    STATUTES. 

appeal  bond  filed  without  a  required  justification  of  sureties 
is  nevertheless  good,  and  will  support  the  appeal,  if  the  sure- 
ties are  in  fact  sufficient.  The  provision  of  the  statute  requir- 
ing a  justification  is  so  far  directory  where  no  different  inten- 
tion is  manifest.^ 

§  451.  Mandatory  statutes. —  Mandatory  statutes  are  im- 
perative ;  they  must  be  strictly  pursued ;  otherwise  the  pro- 
ceeding which  is  taken  ostensibly  by  virtue  thereof  will  be 
void.  Compliance  therewith,  substantially,  is  a  condition  pre- 
cedent ;  that  is,  the  validity  of  acts  done  under  a  mandatory 
statute  depends  on  a  compliance  with  its  requirements.  When 
a  statute  is  passed  authorizing  a  proceeding  which  was  not 
allowed  by  the  general  law  before,  and  directing  the  mode  in 
which  an  act  shall  be  done,  the  mode  pointed  out  must  be 
strictly  pursued.  It  is  the  condition  on  which  alone  a  party  can 
entitle  himself  to  the  benefit  of  the  statute,  that  its  directions 
shall  be  strictly  complied  with.  Otherwise  the  steps  taken 
will  be  void.  But  when  the  proceeding  is  permitted  by  the 
general  law,  and  an  act  of  the  legislature  directs  a  particular 
form  and  manner  in  which  it  shall  be  conducted,  then  it  will 
depend  on  the  terms  of  the  act  itself  whether  it  shall  be  con- 
sidered merely  directory,  subjecting  the  parties  to  some  disa- 
bility if  it  be  not  complied  with,  or  whether  it  shall  render 
the  proceeding  void.  If  no  emancipation  were  permitted,  and 
an  act  of  the  legislature  should  permit  owners  of  slaves  to 
emancipate  them  m  some  prescribed  form,  if  the  form  were 
not  complied  with  the  act  would  be  void.-  "Where  legislation 
points  out  specifically  how  an  act  is  to  be  done,  although 
without  it  the  court  or  officials  under  their  general  powers 

1  St  Louis,  etc.  R.  R.  Co.  v.  Wilder,  mentioned  in  the    statvite,   did    not 

17  Kan.  244.     In  Hardy  v.  Heard,  15  show  on  its  face  a  compliance  with 

Aik.  184,  it  was  declared  that  the  de-  the  law,  and  could  not  be  evidence 

sign  of  the  statute  in  requiring  the  under  the  statute.     But  if  such  deed 

recital  of  the  judgment,  execution,  is  in  comphance  with  the  statute,  it 

etc.,  in  a  sheriff's  deed  for  land  sold  is  only  privia  facie  eTidence,   and 

under  execution  was  to  relieve  the  may  be  entirely  overthrown  by  evi- 

purchaser  from  the  necessity  of  pro-  dence  that  the  sale  had  never  been 

ducing  the  judgment,   etc.,   and  to  made,  or  had  not  been  made  in  ac- 

leave  to  the  party  who  would  contest  cordance  with    the    law.     Moore  v. 

the  sale  to  establish  its  invalidity;  Brown,  11  How.  (U.  S.)  424. 
that  a  deed  for  land  sold  under  exe-        ^  Monk  v.  Jenkins,  2  Hill's  Ch.  12. 
cution,   not    containing    the    recital 


DIRECTORY    AND    MANDATORY    STATUTES.  587 

would  have  been  able  to  perform  the  act,  yet  as  the  legislature 
imposed  a  special  limitation,  it  must  be  strictly  pursued ;  and 
although  performed  b}'  a  discretionary  officer,  the  Hmitation 
of  the  statute  renders  the  doing  of  the  act  ministerial  in  him 
performing  it,  in  which  no  discretion  can  be  indulged.^  Ena- 
bling statutes,  on  the  principle  of  exjjressio  unius  est  excluslo 
alterhis,  impliedl}^  prohibit  any  other  than  the  statutory  mode 
of  doing  the  acts  which  they  authorize.-  This  is  illustrated 
by  the  numerous  cases  where  statutory  rights  and  remedies  are 
given  in  respect  to  which  the  statute  must  be  strictly  pursued.^ 
Where  a  statute  in  granting  a  new  power  prescribes  how  it 
shall  be  exercised,  it  can  lawfully  be  exercised  in  no  other 
way.*  Negative  words  in  granting  power  or  jurisdiction  can- 
not be  directory.^  And  even  affirmative  Avords,  in  such  a  case, 
without  any  negative  expressed,  imply  a  negative.  Where  a 
statutory  power  or  jurisdiction  is  granted,  which  otherwise 
does  not  exist,  whether  to  a  court  or  an  officer ;  and  in  all 
cases  where,  by  the  exercise  of  such  a  power,  one  may  be 
divested  of  his  property,  the  grant  is  strictly  construed ;  the 
mode  of  proceeding  prescribed  must  be  strictly  pursued ;  the 
provisions  regulating  the  procedure  are  mandatory  as  to  the 
essence  of  the  thing  required  to  be  done.^ 

1  Hudson  V.  Jefferson  Co.  Ct.  28  ship,  103  id.  250 ;  Providence  Co.  v. 
Ark.  359.  Chase,  108  id.  319 ;  Harris  v.  Gest,  4 

2  Dalton  V.  Murphy,  30  Miss.  59 ;  St.  Ohio  469 ;  Campbell  v.  AUison,  63 
Veazie  v.  Cliina,  50  Me.  518 ;  Wen-  N.  C.  568 ;  Bayley  t.  Hazard,  3  Yerg. 
del  V.  Durbin,  26  Wis.  390 ;  Beltz-  487 ;  Whipley  v.  Mills,  9  Cat  641 :  Hil- 
hoover  v.  GoUings,  101  Pa.  St.  293.  di-eth  v.  Gwindon,  10  id.  490 ;  Elliott  v. 

3  Ante,  §  393 ;  Buckley  v.  Lowiy,  3  Chapman,  15  id.  383 ;  Gordon  t. 
Mich.  419 ;  Haley  v.  Petty,  42  Ark.  392 ;  Wansey,  19  id.  82 ;  Doclmg  v.  Moore, 
People  V.  Reed,  5  Denio,  554 ;  Wilson  20  id.  14 ;  CUnton  v.  Phihips,  7  T.  B. 
V.  Palmer,    75    N.    Y.  250;   Lane  t.  Mon.  117. 

Wheeler,  101  id.  17 ;  Stafford  v.  Bank,  ^  Head  v.   Ins.  Co.  2  Cranch,  127  ; 

16  How,   135 ;   Stafford  v.  Canal  &  Best  v.  Gholson,  89  111,  465 ;  I'rjmklin 

BankingCo.  17How.  283;Illmois.etc.  Glass   Co.  v.  White,   14  Mass.   286; 

R  R.  Co.  V.  Gay,  5  111.  App.  393 ;  Kirk  State  v.  Cole,  2  McCord,  117. 

V.  Armstrong,  Hempst.  283 :  Coffman  '^  Bladen  v.  Pliiladelphia,  60  Pa  St 

V,  Daveny,  2  How.  (Miss.)  854 ;  Max-  464. 

well  V.  Wessels,  7  Wis.  103 ;  Brown  v.  « Potter's  Dwarris,  224 ;  Corwin  v. 

Ry.  Co.  83  Mo.  478 ;    McLaughlin  v,  Merritt,  3  Barb.  341 ;   Harrington  v. 

State,  66  Ind.  193 ;  Flory  v.  Wilson,  83  People,  6  id.  607  ;  People  v.  Common 

id.  391 ;  Dawson's  Appeal.  15  Pa.   St  Council    of    Brooklyn,    22    iil   404  • 

480 ;  Cheriy  Overseers  v.  Marion  Over-  Bloom  v.  Burdick.  1  HiU,  130 ;  People 

seers,96  id.  528 ;  Road  in  Salem  Town-  v,  Schemerhorn,  19  Bai-b.  540 ;   Com- 


5S8  DIRECTORY    AND    MANDATORY    STATUTES. 

§  455.  'What  the  law  requires  for  the  protection  of  the  tax- 
payer, for  example,  is  mandatory,  and  cannot  he  regarded  as 
du'ectory  merely.^  "  One  rule  is  very  plain  and  well  settled," 
said  Shaw,  C.  J.,  "  that  all  those  measures  which  are  intended 
for  the  security  of  the  citizen,  for  securing  equality  of  taxa- 
tion, and  to  enable  every  one  to  know  with  reasonable  cer- 
tainty for  what  real  and  personal  pro])erty  he  is  taxed,  are 
conditions  precedent ;  and  if  they  are  not  observed  he  is  not 
legally  taxed,  and  he  ma}^  resist  it  in  any  of  the  modes  pro- 
vided by  law  for  contesting  the  validity  of  the  tax.  But  many 
regulations  are  made  by  statute,  designed  for  the  information 
of  assessors  and  officers,  and  intended  to  promote  method, 
system  and  uniformity  in  the  modes  of  proceeding,  the  com- 
pliance or  non-compliance  with  which  does  in  no  respect  affect 
the  rights  of  tax-paying  citizens.  These  may  be  considered  as 
director}^ ;  oiRcers  may  be  liable  to  animadversion,  perhaps,  to 
punishment,  for  not  observing  them,  but  yet  their  observance 
is  not  a  condition  precedent  to  the  validity  of  the  tax."  ^  An 
order  of  court  requiring  fort}^  clear  days  in  a  summons  is  man- 
datory." ^  So  is  the  requirement  that  there  be  inserted  in  veni- 
res the  command  that  the  officer  summon  twent^^-f our  persons, 
''freeholders  of  his  county  or  corporation  residing  remote 
from  the  place  where  the  offense  is  charged  to  have  been  com- 
mitted." •*  So  also,  that  sales  of  real  estate  under  execution 
shall  take  place  at  the  court-house  of  the  county.^  When  the 
power  to  affect  property  is  conferred  by  statute  upon  those 
who  have  no  personal  interest  in  it,  such  power  can  be  exer- 
cised only  in  the  manner  and  under  the  circumstances  speci- 
fied. The  requirement  can  never  be  dispensed  with  as  being 
directory  where  the  act,  or  omission  of  it,  can  by  possibility 
work  injury,  however  slight,  to  any  one  affected  by  it.^    Pro- 

mon  Council  of  Albany,  Ex  parte,  3  137 ;  Hubbell  v.  Weldon,  Lalor,  139 ; 

Cow.  358 ;  Barnard  v.  Viele,  21  Wend.  Sibley  v.  Smith,  2  Mich.  486. 

89 ;  Brisbane  v.  Peabody,  3  How.  Pr.  i  Clark  v.  Crane,  5  Midi.  151. 

109 ;  Rogers  v.  Murray,  3  Paige,  390 ;  2  Torrey  v.  MiUbuiy,  21   Pick.  67 ; 

Atkms    V.  Kinnan,   20   Wend.  249 ;  Sibley  v.  Smith,  2  Midi.  486. 

Sherwood  v.Reade  ,7  Hill.  431;  Sharp  3  Barker  v.  Palmer,  L.  R.  8  Q,  B. 

V.  Spcir,  4  Hill,  76 ;  Morse  v.  Wilham-  Div.  9. 

son,  35  Barb.  473 ;  Sherman  v.  Dodge,  •*  Whitehead  v.  Commonwealth,  19 

6  John.  Ch.   107 ;   Dennmg  v.  Smith,  Gratt.  640. 

3  id.  331 ;  Cohoes  Co.  v.  Goss,  13  Barb.  ^  Koch  v.  Bridges,  45  Miss.  247. 

t'Id. 


DIRECTORY    AND    MANDATORY    STATUTES.  589 

visions  are  directory  where  they  relate  to  some  immaterial 
matter  not  of  the  essence  of  the  thing  to  be  done;  Avhere  a 
compliance  is  matter  of  convenience  rather  than  substance; 
"where  the  departure  from  the  statute  avlQ  cause  no  injury  to 
any  person  affected  by  it,' 

§  456.  The  special  powers  given  to  corporations,  to  courts 
or  officers  must  be  exercised  with  strict,  substantial  adherence 
to  all  directions  of  the  statute.-  When  a  statute  which  sri'ants 
power  or  authority  has  expressly  fixed,  limited  or  declared  the 
time,  with  reference  to  essential  antecedent  acts,  when  sucli 
authority  shall  begin  to  be  exercised  all  other  time  is  excluded ; 
expj'essio  unius  est  exdusio  alteriiis?  It  was  held  under  an 
act  relative  to  the  organization  of  corporations,  which  pro- 
vided that  "  when  the  certificate  has  been  filed  as  aforesaid 
the  persons  who  shall  have  signed  and  acknowledged  such 
certificate  and  their  successors  shall  be  a  body  politic  and  cor- 
porate," that  until  this  certificate  had  been  so  filed  there  was 
no  provision  making  such  persons  a  corporation ;  therefore  the 
filing  of  it  was  a  condition  precedent."  ^  A  body  corporate, 
created  for  a  special  purpose,  with  limited  powers,  being  a 
creature  of  the  statute,  must  conform  m  its  action  to  the 
law  of  its  creation,  and  acts  done  contrary  to  such  reguLv 
tions  are  simply  void.^  In  statutory  proceedings  the  statute 
must  be  substantially  complied  with ;  every  act  required  which 
is  jurisdictional,  or  of  the  essence  of  the  proceeding,  or  pre- 

•  People  V.  Schemerhorn,  19  Barb.  81  Pa.  St.  349 ;  Chollar  Mining  Co.  v. 

558.    See  Koch  V.  Bridges,  45  Miss.  Wilson,  66  CaL  374 ;  Seymour  v.  Judd, 

247 ;  Hurford  v.  Omaha,  4  Neb.  336 ;  2  N.  Y.  464 ;  Childs  v.  Smith,  55  Barb. 

Best  V.  Gholson,  89  EL  465 ;  People  v.  45. 

Cook,   14    Barb.   290 ;    8    N.   Y.   67 ;  ^  Childs  v.  Smith,  55  Barb.  45. 

Marsh  v.  Chesnut,  14  IlL  228 ;  Clark  <  \^ ;   Bigelow  v.  Gregory,  73  IlL 

V.  Crane,  5  Midi.  151 ;  State  t.  Mc-  197.   See  Vanneman  v.  Young  (N.  J.), 

Lean,  9  "Wis.  292 ;  Norwegian  Street,  20  Atl.  Rep.  53 ;  Cross  v,  Pinckney- 

81  Pa.  St.  349 ;  McKune  v.  Weller,  11  viUe  MiU  Co.  17  111.  54. 

Cal.  49.  5  Cope  v.  Tliames  Haven,  etc.  Co.  3 

2  Cope  V.  Thames  Haven,  etc.  Co.  3  Ex.  841 ;  Frend  v.  Dennett,  4  C.  B. 

Ex.  841 ;  Diggle  v.  London,  etc.  R  R  (N.   S.)  576 ;   Gordon  v.  Winchester 

Co.  5    id.   442;  Des  Moines  v.   Gil-  Building  Asso.  12  Bush,  110;  Beckett 

Christ,  67  Iowa,   210 ;    Pittsburg   v.  v.  Uniontown  Building  Asso.  88  Pa. 

Walter,  69  Pa  St.  365 ;  Pensacola  V.  St   211;    Working    Men's    Building 

Reese,  20  Ma.  437 ;  Norwegian  Street,  Asso.  v.  Coleman,  89  id.  428. 


590  DIRECTORY    AND    MANDATORY    STATUTES. 

scribed  for  the  benefit  of  the  party  to  be  affected  thereby, 
must  be  done ;  the  requirement  is  mandatory.^  Of  this  nature 
is  the  certificate  of  a  justice  of  the  peace  of  the  town  where 
the  parties  reside,  as  to  the  death  of  an  infant's  father,  re- 
quired by  a  statute  relative  to  the  binding  of  infants  as  ap- 
prentices to  be  given,  before  the  consent  of  the  mother  can  be 
deemed  sufficient,  and  tlie  indorsement  of  such  certificate  on 
the  indenture  itself.-  Every  material  requirement  must  be 
strictl}"  observed  in  carrying  out  the  laws  for  condemning  pri- 
vate property  to  public  uses,  and  the  proceedings  must  show 
affirmatively  on  their  face  a  substantial  adherence  to  the  course 
prescribed  by  the  statute.*  Land  cannot  be  so  taken  without 
compliance  with  the  preliminary  requirement  to  endeavor  to 
agree  with  the  owner  upon  the  compensation.^ 

§  457.  Where  work  required  by  a  municipal  charter  to  be 
let  by  contract  on  competitive  bidding  has  been  done  by  day's 
work  there  is  a  fatal  departure  from  the  statute.^  An  act 
requiring  a  preliminary  notice  for  the  benefit  of  persons  to  be 
affected,  or  the  information  of  the  public,  when  a  statutory 
power  is  to  be  exercised,  is  mandatory.^  A  provision  prohib- 
iting the  passing  or  adopting  of  certain  resolutions  by  the 
common  council  until  two  days  after  the  publication  thereof 
in  a  prescribed  manner,  held  mandatory ;  that  compliance  was 
essential  —  jurisdictional.''  So  one  requiring  a  comptroller  to 
publish  notices  stating  when  the  time  for  redemption  of  land 

iTJuited  States  v.  Wyngall,  5  Hill,  SKroop  v.  Forman,  31  Mich.  144; 

16 ;  Olcott  V.  Frazier,  id.  503 ;  Sharp  Bennett  v.  Drain  Commissioner,  56 

V.  Speir,  4  HUl,  76 ;  Sharp  v.  John-  id.  634. 

son,  id.  92 ;  In  re  Petition  of  Ford,  6  *  People  v.  Hillsdale,  etc.  T.  Co.  2 

Lans.  92 ;  Weed  v.  Lyon,  Walk.  Ch.  John.  190. 

77;  Galpin  v.   Abbott,   6  Mich.    17;  5  Matter  of  Manhattan  R.  R  Co.  102 

In  re  Selby,  6  Mich.  193 ;  O'Donnell  N.  Y.  301 ;  In  re  Emigrant  Industi-ial 

T.  Mclntyre,  37  Hun,  615;  Thurston  Savings  Bank,  75  id.  388;  In  re  Mer- 

V.  Prentiss,  1  MicK  193 ;  Duanesburgh  riam,  84  id.  596, 609 ;  In  re  Wed,  83  id. 

V.  Jenkins,  46  Barb.  294 ;  Wheeler  v.  543 ;  In  re  Lange,  85  id.  307. 

Mills,  40  id.  644 ;  Whitney  v.  Thomas,  «  Lane  v.   Burnap,   39  Mich    736  ; 

23  N.   Y.   281 ;   Hascall  v.   Madison  Barnett  v.  Scully,  56  id.  374 ;  Bennett 

University,  8  Barb.  174 ;  In  re  Peti-  v.  Drain  Coram'r,  id.  634 ;  Welker  v. 

tion  of  Folsom,  2  T.  &  C.  55.  Potter.  18  Ohio  St.  85. 

-  People  V.   Gates,   57    Barb.   291 ;  ^  In  re  the  Petition  of  Douglass,  46 

People  V.  Adu-ondack  Co.  id.  656.  N.  Y.  42. 


DIRECTORY   AND   MANDATORY    STATUTES.  591 

sold  for  taxes  would  expire.  It  is  intended  for  the  protection 
of  the  land-owner,  and  unless  complied  with  no  title  will  pass 
by  the  deed.^ 

§  458.  Statutes  which  eoufer  new  right,  privilege,  etc.— 
Where  a  statute  confers  a  new  right,  privilege  or  inimnnity 
the  grant  is  strictly  construed,  and  the  mode  prescribed  for  its 
acquisition,  preservation,  enforcement  and  enjoyment  is  man- 
datory. An  instance  of  such  legislation  is  that  relating  to 
married  women,  by  which  they  may  acquire  and  dispose  of 
property,  make  contracts  in  regard  to  it,  and  assert  other 
rights.  Such  statutes,  providing  the  form  and  mode  of  exer- 
cising the  rights  thus  given,  are  mandatory ;  they  must  be  fol- 
lowed substantially  to  give  validity  to  their  acts.^  The  same 
is  true  in  regard  to  copyrights.'  Where  a  statute  provided 
for  sealed  bids  to  be  received  until  a  certain  day,  when  they 
are  required  to  be  opened,  all  bids  put  in  after  that  day  are 
excluded.^ 

§  459.  Where  an  existing  right  or  privilege  is  subjected  to 
regulation  by  a  statute  in  negative  words,  or  those  which  im- 
port that,  it  is  only  to  be  exercised  in  a  prescribed  manner,  the 
mode  so  prescribed  is  imperative.'^  A  provision  of  the  Wiscon- 
sin registry  law  was  that  "  no  vote  shall  be  received  at  any 
annual  election  in  this  state,  unless  "  certain  previous  condi- 
tions were  complied  with ;  it  was  held  to  be  imperative ;  that  all 
votes  received  in  violation  of  the  regulation  should  be  rejected 
in  an  action  to  try  the  title  to  an  office.'^    Where  the  language  of 

iWestbrook  v.  Willey,  47  N.  Y.  v.  Wentworth,82icl.280;  Innisv.Tem- 

457 ;  Cruger  v.  Dougherty,  43  id  107 ;  pletou,  95  id.  2C2 ;  ^MiUer  v.  Ruble,  107 

Doughty  V.  Hope,  3  Denio,  594;   1  id.   395;  Montoursville  Overseers  v. 

N.  Y.  79.  Fairfield  Overseers,  112  id.  99. 

2Bartlettv.O'Donoghue,72Mo.563;  3"\Vlieaton  v.  Peters,  8  Pet  591; 

Hoskinsonv.  Adkins,  77  id.  537;  Bag-  JoUie  v.  Jaques,  1  Blatchf.  618;  Ba- 

ley  V.  Embersou,  79  id,  139 ;  Beckman  ker  v.  Taylor,  2  id.  82 ;  Newton  v. 

V.  Stanley,  8  Nev.  257 ;  Shumaker  v,  Cowie,  4  Bing.  234 ;  Avanzo  v.  ]Mudie, 

Johnson,  35  Ind.  33 ;  Mattox  v.  Hight-  10  Ex.  203 ;  Brooks  v.  Cock,  3  Ad.  & 

shue,  39  id  95 ;  Galium  v.  Petigrew,  E.  141 ;  Henderson  v.  Maxwell,  L.  R, 

10  Heisk.  394 ;  Leggate  v.  Clark,  111  5  Ch.  Div.  892 ;  Matliieson  v.  HaiTod, 

Mass.  308 ;  Armsti-ong  v.  Ross,  20  N.  L.  R.  7  Eq.  270. 

J.  Eq.  109 ;  Ti-imnier  v.  Heagy,  16  Pa.  ^  Webster  v.  French,  12  111.  302, 

St.  484;  Gliddeu  x.   Strupler,  52  id  5  Stay  ton  v.   Hulings,   7  Ind  144; 

400;  Dimham  v.  Wright,  53  id.  107;  Union  Bank  v.  Laird,  2  Wheat  390. 

Graham  v.  Long,  65  Pa,  St  383 ;  Miller  ^  state  v.  Hikuimtel,  21  Wis.  506 ; 


592  DIRECTORY    AND   MANDATORY    STATUTES. 

a  statute  is  that  no  debt  or  contract  thereafter  incurred  or  made 
by  a  municipal  corporation  shall  be  binding  .  .  .  unless 
authorized  by  law  or  ordinance,  and  an  appropriation  sufficient 
to  pay  the  same  be  previously  made,  it  is  mandatory,  and  the 
power  to  contract  is  limited  accordingly.^  The  provisions  of 
the  statute  of  frauds  are  another  notable  instance  of  manda- 
tory regulations.  Where  the  whole  aim  and  object  of  the  leg- 
islature would  be  plainly  defeated  if  the  command  to  do  the 
thing  in  a  particular  manner  did  not  imply  a  prohibition  to  .do 
it  in  any  other  manner,  no  doubt  can  be  entertained  that  the 
command  is  imperative.-  The  enactment,  for  instance,  of  the 
metropohtan  building  act,^  that  the  walls  of  buildings  shall  be 
constructed  of  brick,  stone  or  other  incombustible  material, 
though  containing  no  prohibitory  words,  obviously  prohibits 
by  implication  and  makes  illegal  their  construction  with  any 
other.*  A  statute  provided  that  an  assignment  for  the  benefit 
of  creditors  shall  be  duly  acknowledged  by  the  assignor,  and 
the  certificate  thereof  duly  indorsed,  before  delivery  to  the 
assignee ;  that  the  assignor  at  the  date  of  the  assignment,  or 
within  twenty  days  thereafter,  make  and  deliver  to  the  judge 
of  the  county  of  his  residence  a  schedule,  verified  by  him,  as 
prescribed  by  the  act,  containing  a  full  and  true  account  of  all 
his  creditors  and  their  residences,  as  far  as  known ;  the  sum 
owing  to  each  creditor,  and  the  nature  of  the  debt  and  how  it 
arose ;  the  consideration  of  the  debt  and  the  place  where  it 
arose;  a  statement  of  any  security  for  any  debt,  etc.  This 
statute  also  required  a  bond  from  the  assignee  for  faithful  per- 
formance of  the  trust.    These  provisions  were  held  mandatory.^ 

State  V.  Stumpf,  23  Wis.  630 ;  In  re  Grover,  J.,  deliveriBg  the  opinion  of 

Election  of  McDonough,  105  Pa.  St.  the  court,  said :  "  In  construing  these 

488.     See  Dale  v.  Irwin,  78  111.  170,  two  latter  sections,  the  supreme  court 

and  Clark  v.   Robinson,  88  ILL  498,  .    .    .     applied  the  rule  adopted  in 

where  it  was  held  that  the  negative  the  construction  of  statutes,  prescrib- 

provision  or  prohibition  was  direct-  ing  the  time  for  the  performance  of 

ory.  oflhdal  acts  by  public  officers,  in  the 

1  Bladen  v.  Pliiladelphia,  60  Pa,  St.  performance    of  which    the    pubhc 
464.  have  an  interest.    In  construing  these 

2  EndL  on  St.  t^  481.  latter  statutes  it  is  weU  settled  tliat, 
3 18  and  19  Vict.  ch.  122,  §  12.  where  the  act  prescribes  a  time  for 
*  Id. ;  Stevens  v.  Gourley,  7  C.  B.     the  performance  of  the  act,  without 

(N.  S.)  99.  anytlung    prohibiting    the    doing  it 

5  Juliand  v.  Rathbone,  39  N.  Y.  369.    after  the  time  so  fixed,  the  act  shall 


DIRECTORY    AND    MANDATORY    STATUTES. 


593 


§  460.  Statutes  whicli  are  permissive  in  form. —  Where 
statutes  are  couched  in  words  of  i)er]iiission,  or  declare  that  it 


be  valid  if  performed  after  the  time 
prescribed.  The  rea.son  for  tliis  con- 
sti'uction  is  that  the  pubhc,  or  some 
portion  thereof,  have  an  interest  in 
the  performance  of  the  act,  and,  to 
prevent  injury  from  the  laches  of  the 
officer,  the  rule  has  been  adopted. 
That  class  of  cases  holding  that, 
where  the  common  law  confers  a 
right  or  gives  a  remedy,  and  a  statute 
is  enacted  conferring  a  new  right  or 
giving  a  new  remedy,  it  wiU  be  so  con- 
strued as  not  to  take  away  the  com- 
mon-law right  or  remedy,  vmless  it 
contains  negative  words  showing  that 
sucli  was  the  legislative  iatent,  was 
somewhat  relied  on ;  neither  class  is 
analogous  to  the  present  statute.  The 
acts  to  be  performed  are  by  private 
persons,  not  pubhc  officers.  The  act 
creates  no  new  right  or  remedy,  but 
is  designed  to  regulate  an  existing 
right  merely.  In  construing  such 
statutes  the  common-law  rule,  as  laid 
down  by  the  elementary  writers,  is  to 
consider,  first,  what  mischief,  if  any, 
resulted  from  the  exercise  of  the  com- 
mon-law right ;  second,  what  is  the 
remedy  provided  by  the  statute  for 
such  mischief;  tliird,  to  give  the 
statute  such  construction,  if  practi- 
cable, as  win  suppress  the  miscliief 
and  make  the  remedy  efficient.  Ap- 
plying the  lode  to  the  present  statute 
the  mischief  to  be  remedied  is  ob- 
vious: to  prevent  pretended  assign- 
ments being  made  obstacles  in  the  way 
of  creditors.  The  first  section  pro- 
vides that  it  shall  be  acknowledged, 
and  the  proof  thereof  certified  before 
dehveiy.  Tliis  court  has  hold  (Ilard- 
mann  v,  Bowen,  39  N.  Y.  196)  that  an 
assignment  dehvered  without  such 
acknowledgment  and  certificate  is 
void.  This  does  not  necessarily  de- 
termine the  effect  of  non-compUance 
38 


with  the  requirements  of  the  two 
following  sections,  as  the  judgment 
may  be  ujjheld  by  the  provision  that 
the  acknowledgment,  etc.,  shall  be 
made  before  the  dehveiy  of  tlie  as- 
signment But  in  the  absence  of  tliis, 
I  think  the  same  constniction  should 
be  given  to  the  clause,  which  then 
would  read,  every  convej-ance  made 
by  a  debtor  in  trust  for  his  creditors 
shall  be  acknowledged.  Experience 
has  shown  that  debtors  frequently, 
with  a  view  to  defraud  their  credit- 
ors, and  make  compositions  with 
them  advantageous  to  themselves, 
made  general  assignments  of  all  their 
property  in  trust  for  creditors,  giving 
no  information  of  the  character,  sit- 
uation or  value  of  the  property  as- 
signed, or  the  amount  of  the  debts, 
residence  of  creditors,  whether  the 
debts  were  secured,  and  giving  no 
information  to  a  creditor  to  enable 
him  to  ascertain  anytliing  in  relation 
to  the  value  of  the  property  assigned, 
or  the  amount  and  bona  fides  of  the 
debts  entitled  to  share  in  the  pro- 
ceeds of  the  property."  After  point- 
ing out  how  comphance  with  the 
provisions  of  the  statute  in  question 
would  remedy  these  evUs,  the  learned 
judge  continued :  "  but,  in  case  of 
failure  so  to  complj^  the  assignment 
must  be  adjudged  void.  This  con- 
sti'uction  Avill  render  these  sections 
efficient  in  suppressing  fraud,  while 
that  adopted  by  the  supreme  court 
[holding  these  provisions  directoiy] 
rendei-s  them  almost  nugatory  and 
useless."  "  To  make,"  says  Cassoday, 
J.,  "a  voluntary  assignment  for  the 
benefit  of,  or  in  trust  for,  crechtons, 
vaUd  as  against  the  creditors  of  the 
person  making  the  same,  it  is  essen- 
tial that  all  the  rcquii-ements  of  the 
statutes  should  be  substantially  com- 


594  DIKECTOEY   AND   MANDATORY    STATUTES. 

shall  be  lawful  to  do  certain  things,  or  provide  that  they  may 
be  done,  their  literal  signification  is  that  the  persons,  official 
or  otherwise,  to  whom  they  are  addressed  are  at  liberty  or 
have  the  option  to  do  those  things  or  refrain,  at  their  election. 
Where  it  was  provided  that  the  capital  stock  of  a  bank  might 
consist  of  a  certain  sum,  the  provision  was  held  discretionary 
and  not  imperative.  1   .Story,  J.,  said:  "The  argument  of  de- 
fendants is,  that '  may  '  in  this  section  means  '  must,'  and  reh- 
ance  is  placed  upon  a  well-known  rule  in  the  construction  of 
public  statutes  where  the  word  '  may '  is  often  construed  as 
imperative.     Without  question  such  a  construction  is  proper 
in  all  cases  where  the  legislature  means  to  impose  a  positive 
and  absolute  duty,  and  not  merely  to  give  a  discretionary  power. 
But  no  general  rule   can  be  laid   down  upon  this  subject 
further  than  that  the  exposition  ought  to  be  adopted  in  this  as 
in  other  cases  which  carries  into  effect  the  true  intent  and 
object  of  the  legislature  in  the   enactment.     The   ordinary 
meaning  of  the  language  must  be  presumed  to  be  intended,. 
unless  it  would  manifestly  defeat  the  object  of  the  provisions." 
The  words  in  a  statute,  "  it  shall  be  lawful,"  of  themselves, 
merely  make  that  legal  and  possible  which  there  would  other- 
wise be  no  right  or  authority  to  do.     Their  natural  meaning 
is  permissive  and  enabling  only.     But  there  may  be  circum- 
stances which  may  couple  the  power  with  a  duty  to  exercise 
it.     It  lies  upon  those  who  call  for  the  exercise  of  the  power 
to  show  that  there  is  an  obligation  to  comply.^     The  lord 
chancellor  said :    "  The  words  '  it  shall  be  lawful '  confer  a  fac- 
ulty or  power,  and  they  do  not  of  themselves  do  more  than 
confer  a  faculty  or  power.     But  there  may  be  something  in 
the  nature   of  the   thing  empowered  to  be  done,  something 
in  the  object  for  which  it  is  to  be  done,  something  in  the  con- 
ditions under  which  it  is  to  be  done,  something  in  the  title  of 
the  person  or  persons  for  whose  benefit  the  power  is  to  be  ex- 
ercised, which  may  couple  the  power  with  a  duty,  and  make 
it  the  duty  of  the  person  in  whom  the  power  is  reposed  to  ex- 
plied  with."    Shakman  v.  Sclilueter,        i  Mnor  v.  Mechanics'  Bank,  1  Pet 

46  N.  W.  Rep.  542,  77  Wis. ,  citing    46. 

Fuhrman  v.  Jones,  68  Wis.  497 ;  Clark        2  Julius  v.  Lord  Bishop  of  Oxford, 
V.  Lamoreux,  70  id.  508 ;  Hanson  v.     L.  R.  5  App.  Cas.  214. 
Dunn,  76  id.  455. 


DIRECTOKY    AND    MANDATOKY    STATUTES.  595 

ercise  that  power  when  called  on  to  do  so.  Whether  the 
power  is  one  coupled  with  a  duty  such  as  I  have  described  is 
a  question  wliich  according  to  our  system  of  law,  speaking 
generally,  it  falls  to  the  court  of  queen's  bench  to  decide,  on 
an  application  for  a  mandamus.  And  the  words  '  it  shall  be 
lawful,'  being  according  to  their  natural  meaning  permissive 
and  enabling  only,  it  lies  on  those,  as  i.t  seems  to  me,  who  con- 
tend that  an  obligation  exists  to  exercise  this  power,  to  show 
in  the  circumstances  of  the  case  something'  which,  accordinji" 
to  the  principles  I  have  mentioned,  creates  this  obligation."  ' 

§  401.  On  an  indictment  against  church  wardens  for  net 
making  a  rate  to  reimburse  the  constables,  the  statute  ap- 
pears to  have  used  the  words  "  may  make  a  rate,"  but  it  was 
naturally  held  that  the  constables  were  entitled  to  be  reim- 
bursed, and  that  the  church  wardens,  being  made  the  deposi- 
taries of  a  power  for  that  purpose,  could  not  refuse  to  exercise 
it.^  Kex  V.  Havering  Atte  Bower  ^  was  the  case  of  a  mandamus 
in  reference  to  the  power  granted  by  royal  charter  to  the 
steward  and  suitors  of  a  manor,  giving  them  authority  to 
hear  and  determine  civil  suits.  It  was  held  that  this  was  in 
effect  the  establishment  of  a  court  for  the  public  benefit,  and 
that  the  steward  and  suitors  of  the  manor  were  bound  ta 
hold  the  court.  In  Macdougall  v.  Paterson  ^  the  question  was- 
whether  the  plaintiff  in  a  county  court  action  who  had  recov- 
ered his  debt  should  not  have  his  costs  taxed  and  allowed  in  a 
particular  way.  The  statute  had  provided  there,  that  under 
the  circumstances  in  which  the  plaintiff  stood,  the  court  might, 
by  rule  or  order,  direct  that  he  might  recover  his  costs ;  and 
Jervis,  C.  J.,  delivering  the  opinion  of  the  court,  stated  that 
the  conclusion  to  be  drawn  from  the  cases  was  that,  when  a 
statute  confers  an  authority  to  do  a  judicial  act  in  a  certain 
case,-it  is  imperative  on  those  so  authorized  to  exercise  the  au- 
thority, when  the  case  arises,  and  its  exercise  is  duly  applied  for 
by  a  party  interested,  and  having  the  right  (that  is,  having  by 
statute  the  right)  to  make  the  application.  The  case  of  Mor- 
risse  v.  Royal  British  Bank  *  was  a  case  of  the  same  kind,  and  de- 
cided that,  under  the  words  "  it  shall  be  lawful  for  the  court," 

1  Backwell's  Case,  1  Vera.  152.  ■•  11  C.  B.  755. 

2  Rex  V.  Barlow,  3  Salk.  609.  »  1  C.  B.  (N.  S.)  67. 

3  5  B.  &  Aid.  691. 


596  DIRECTORY   AND   MANDATORY    STATUTES. 

a  creditor  who  had  obtained  judgment  against  a  joint-stock 
banking  company,  and  bad  failed  to  collect  bis  debt  against 
it,  ^Yas  entitled  as  of  right  to  an  execution  against  a  share- 
holder on  complying  with  the  conditions  imposed  by  the 
statute.  In  Kegina  v.  Tithe  Commissioners '  a  power  was 
given  to  the  tithe  commissioners  in  dealing  with  certain  land- 
owners to  confirm  agreements  for  commutations  of  tithe, 
under  certain  special  circumstances  and  conditions.  The  court 
held,  upon  the  construction  of  the  whole  statute,  that  if  a 
case  occurred,  coming  within  the  terms  of  the  statute,  the 
commissioners  were  bound  to  confirm  the  agreement  there 
mentioned.  In  delivering  the  opinion  of  the  court  Mr.  Jus- 
tice Coleridge  observed :  "  The  words  undoubtedly  are  only 
empowering,  but  it  has  been  so  often  decided  as  to  have  be- 
come an  axiom,  that  in  public  statutes  words  only  director}^, 
permissory  or  enabling  may  have  a  compulsory  force,  where 
the  thing  to  be  done  is  for  the  public  benefit  or  in  advance- 
ment of  pubhc  justice." 

§  462.  There  is  much  conflict  of  authority  on  this  question  in 
this  country  as  well  as  in  England,  owing  probably  in  great  part 
to  diverse  circumstances  distinguishing  the  cases  and  indicating 
the  intention  with  which  the  permissive  words  were  employed. 
It  is  believed  that  the  conclusion  reached  in  the  cases  men- 
tioned in  the  preceding  section  is  supported  by  a  preponderating 
weight  of  reason  and  authority.  In  all  cases  where  the  words 
*'  it  shall  be  lawful "  or  the  word  "  may  "  or  any  equivalent  per- 
missive expression  is  employed  with  reference  to  a  court  of 
justice,  and  independently  of  any  precise  conditions  expressed 
or  implied,  they  give  the  tribunal  jurisdiction,  leaving  it  to 
exercise  its  discretion  according  to  the  requirements  of  jus- 
tice in  each  particular  case.^  Where,  with  reference  to  con- 
ditions expressed  or  implied,  or  independent  of  any  special 
circumstances,  it  is  manifestly  intended  that  the  power  should 
be  exercised  for  the  promotion  of  justice  or  the  pubhc  good, 
such  permissive  words  are  imperative  in  the  former  case  upon 

1 14  Q.  B.  459.  Q.  B.  Div.  535 ;  Julius  v.  Bishop  {»f 

2  Re  Bridgman,  1  Drew.  &  S.  at  p.  Oxford,  L.  R  5  App.  Cas.  314 ;  Beach 

169 ;  Rex  v.  Justices  of  Norfolk,  4  B.  v.  Reynolds,  64  Barb.  506 ;  Jarman, 

&  Ad.  238 ;  Castelll  v.  Groom,  18  Q.  B.  Ex  parte,  L.  R  4  Cli.  D.  at  p.  838. 
490 ;  Reg.  v.  Bishop  of  Oxford,  L.  R  4 


DIKECTORY    AND    MANDATORY    STATUTES.  597^ 

the  requisite  conditions  being  shown,  and  in  the  other  upon 
apphcation  by  those  entitled  to  invoke  the  exercise  of  the 
power,  such  circumstances  as  were  needful  having  been  con- 
sidered by  the  legislature.^  Permissive  words  in  respect  to 
courts  or  officers  are  imperative  in  those  cases  in  which  the 
public  or  individuals  have  a  right  that  the  power  so  conferred 
be  exercised.'-  Such  words,  when  used  in  a  statute,  will  be  con- 
strued as  mandatory  for  the  purpose  of  sustaining  and  en- 
forcing rights,  but  not  for  the  purpose  of  creating  a  right  or 
determining  its  character ;  they  are  peremptory  when  used  to 
clothe  a  public  officer  with  power  to  do  an  act  which  ought 
to  be  done  for  the  sake  of  justice,  or  which  concerns  the  pub- 
lic interest  or  the  rights  of  third  persons.^  "Where  a  statute 
confers  poA\'er  upon  a  corporation,  to  be  exercised  for  the  pub- 
lic good,  the  exercise  of  the  power  is  not  merely  discretionary, 
but  imperative,  and  the  words  "  power  and  authority  "  in  such 
case  mean  duty  and  obhgation.*  The  words  "  authorized  and 
empowered "  are  imperative  in  respect  to  a  board  of  super- 
visors where  parties  improperly  assessed  are  entitled,  under 
conditions  stated  in  the  statute,  to  have  taxes  refunded  by  the 
act  and  decision  of  such  board.^  The  "  power  to  levy  all  need- 
ful taxes  and  to  pay  and  discharge  all  claims  on  or  against  th& 
county  which  have  been  expressly  or  imphedly  authorized  by 
law  "  conveys  authority  and  imposes  the  duty  of  providing  for 
any  local  object  sanctioned  by  the  legislature.® 

An  act  provided  that  a  city  council  might,  "  if  it  believe  the 
public  good  and  the  best  interests  of  the  city  requu'ed  it,"  levy 

1  Girdlestone  v.  Allan,  1  B.  &  C.  61 ;  ~  Tarver  v.  Commissioners'  Court, 

Cook  V.  Tower,  1  Taunt.  372 ;  Barber  17  Ala.  527 ;  IMitchell  v.  Duncan,  7  Fla. 

V.  Gamson,  4  B.  &  Aid.  281;  Crake  13;  Reg.  t.  Adamson,  L.  R.  1  Q.  B. 

V.  Powell,  2  E.  &  B.  2 10 ;  Macdougall  v.  DW.  201. 

Paterson,  11 C.  B.  755 ;  Asplin  v.  Black-  3  Banks,  Ex  parte,  28  Ala.  28 :  Rex 

man,  7  Ex.  386 ;  Reg.  v.   Williams,  v.  Barlow,  2  Salk.  609 ;  Johnston  v. 

2  C.  &  K.  1001 ;  Bower  v.  Hope  Life  Pate,  95  N.  C.  68. 

Ins.  Co.  IIH.  L.  Cas.  389,  402;  Marson  ^  Mayor,    etc.   v.  Mamott.   9    Md. 

V.   Lund,   13  Q.   B.   664 ;  Morisse  v.  160 ;  Com'rs  of  Pub.  Schools  v.  Co. 

Royal  B.  Bank,  1   C.  B.  (N.  S.)  67 ;  Com'rs,  20  id.  449 ;  Barnes  v.  Thomp- 

Reg.  r  Boteler,  4  B.  &  S.  989 ;  Reg.  v.  son,  2  Swan,  317. 

Mayor  of  Har-nnch,  8  Ad.  &  E.  919 ;  5  People  v.  Boai'd  of  Supervisors,  56 

Roles  V.  Rosewell,  5  T.  R.  538 ;  Hardy  Barb.  452. 

V.  Bern,  id.   636 ;  Tolmie  v.  Dean,  1  ^  Com'rs    of    Pub.   Schools  v.   Ca 

Wash.  T'y,  47.  Com'rs,  siipra. 


"598  DIKECTOEY    AND    MANDA.TOKY    STATUTES, 

a  tax  to  pay  its  funded  debt ;  and  it  was  held  imperative ;  that 
a  mandamus  lay  at  the  instance  of  a  creditor  to  compel  such  a 
tax  to  be  levied.  The  court  said :  "  The  discretion  thus  given 
cannot,  consistently  with  the  rules  of  law,  be  resolved  in  the 
negative.  The  rights  of  the  creditor  and  the  ends  of  justice 
demand  that  it  should  be  exercised  in  favor  of  affirmative  ac- 
tion," ^  In  another  case  the  same  court  said :  "  The  conclusion 
to  be  deduced  from  the  authorities  is,  that  where  power  is  given 
to  public  officers  in  the  language  of  the  act  before  us,  or  in 
equivalent  language,  whenever  the  public  interest  or  individual 
rights  call  for  its  exercise,  the  language  used,  though  permis- 
sive in  form,  is  in  effect  peremptory.  What  they  are  empow- 
ered to  do  for  a  third  person  the  law  requires  shall  be  done. 
The  power  is  given,  not  for  their  benefit,  but  for  his.  It  is 
placed  with  the  depositary  to  meet  the  demands  of  right  and 
to  prevent  a  failure  of  justice.  It  is  given  as  a  remedy  to 
those  entitled  to  invoke  its  aid,  and  who  would  otherwise  be 
remediless.  In  all  such  cases  it  is  held  that  the  intent  of  the 
legislature,  which  is  the  test,  was  not  to  devolve  a  mere  dis- 
cretion, but  to  impose  a  positive  and  absolute  duty."  -  A  stat- 
ute provided  that  the  certificate  of  tax  sale  Tiiay  be  substan- 
tially in  the  following  form.  The  word  may  in  this  provision 
was  held  to  be  equivalent  to  shaU.^  The  use  of  both  may  and 
shall  in  the  same  provision  may  afford  a  very  forcible  indica- 
tion of  the  intention.  Thus,  the  use  of  words  that  are  plainly 
compulsory  in  one  aspect,  and  the  use  of  others  which  liter- 
ally are  permissive  in  another,  necessarily  leads  to  an  infer- 
ence that  the  primary  meaning  is  to  be  retained,*  It  is  pro- 
vided by  the  18  and  19  Yict,,  chapter  128,  that  "  every  vacancy 
in  the  burial  board  shall  be  filled  up  by  the  vestry  within  one 
month,  and  in  case  any  such  vestry  shall  neglect  to  fill  up  any 
such  vacancy,  the  vacancy  may  be  fiUed  up  by  the  burial  board 
at  any  meeting  thereof,"  It  was  held  that  the  word  "  may  " 
an  this  provision  was  not  imperative.^  By  a  statute  it  was 
provided  that  in  a  certain  event  a  bridge  should  "  become  a 

1  Galena  v.  Amy,  5  WaE  705,  709.     ler  v.  Houlilian,  32  id,  486;  GilfiUan 

2  Supervisors    v.   United  States,   4    v.  Hobart,  35  id.  185. 
WaU.  at  pp.  446,  447 ;  Hogan  v.  Dev-        4  wilb.  on  St  204 

lin,  2  Daly,  184.  5  id. ;    Reg,  v.   Overseers  of  South 

3  Clark  V.  Schatz,  24  Minn.  300 ;  Kel-    Weald,  5  B.  &  S.  391. 


DIEECTOKY   AND   MANDATOEY    STATUTES.  599 

public  bridge  and  may  be  maintained  by  the  county."  "  This," 
say  the  court,  "  is  a  direction  to  a  public  body  (not  an  option 
to  a  private  person  or  corporation),  in  the  execution  whereof 
the  inhabitants  of  that  county  have  a  pecuniary  interest.  In 
fact  the  public  generally  may  be  said  to  have  such  an  interest. 
"Where  persons  or  the  public  have  an  interest  in  having  the 
act  done  by  a  public  body,  '  may '  in  such  a  statute  means 
'  must.' '  This  rule  must  prevail  where  there  is  nothing  that 
Avould  evince  a  contrary  intention  in  the  statute  or  in  the  sur- 
rounding facts."  ^  "Whether  merely  permissive  or  imperative 
depends  on  the  intention  as  disclosed  by  the  nature  of  the  act 
in  connection  with  which  the  word  is  employed  and  the  con- 
text.3 

1  Newburgh  Turn.  Co.  v.  Miller,  5  104 ;  Spangler  v.  Jacoby,  14  IlL  297 ; 
John.  Cli.  113;  Malcolm  v.  Rogers,  5  Supervisors  v.  People,  25  IlL  181. 
Cow.  188.  3  Lewis  v.  State,  3  Head,  127 ;    1 

2  Phelps  V.  Hawley,  52  N.  Y.  23, 27 ;  Kent's  Com.  463 ;  IMinor  v.  Mechan- 
^teckert  v.  East  Saginaw,  23  Midi,  ics'  Bank,  1  Pet  46,  64 


CHAPTER  XYII. 


RETROACTIVE  STATUTES. 


§  463.  Generally  regarded  with  dis- 
favor. 

465.  Ex  post  facto  laws. 

467.  Reti'ospective  laws  relating  to 
criminal  procedure. 

470.  Change  of  punishment  by  sub- 
sequent legislation. 


§  471.  Laws  impairing  obligation  of 
conti-acts. 
476.  Change  of  remedy. 
480.  Vested  rights  inviolable. 
483.  Curative  statutes. 


§  463.  (xenerally  regarded  with  disfayor. —  Eetrospective 
statutes  relate  to  past  acts  and  transactions.  Retroactive 
statutes  are  those  which  operate  on  such  acts  and  transactions 
and  change  their  legal  character  or  effect.  Congress,  as  well 
as  the  states,  are  expressly  forbidden  by  the  federal  constitu- 
tion to  pass  any  ex  post  facto  law,^  and  the  states  are  forbidden 
to  pass  any  law  impairing  the  obligation  of  contracts.^  As 
retrospective  laws  are  generally  unjust  and  in  many  cases 
oppressive,  they  are  not  looked  upon  with  favor.  Statutes 
not  remedial  will  therefore  not  be  construed  to  operate  retro- 
spectively, even  when  they  are  not  obnoxious  to  any  consti- 
tutional objection,  unless  the  intent  that  they  shall  do  so  is 
plainly  expressed  or  made  to  appear.^    Where  the  intention 


1  Ai-t  I,  sees.  9  and  10. 

2  Id. 

3  HiU  V.  Nye,  17  Hun,  467 ;  Dash  v. 
Van  Kleeck,  7  Johns.  477 ;  McMannis 
V.  Butler,  49  Barb.  176 ;  Railroad  v. 
Murrell,  11  Heisk.  715;  Goshen  v. 
Stontagton,  4  Conn.  220;  Life  Ins. 
Co.  V.  Ray,  50  Tex.  512 ;  Fviltz  v.  Fox, 
9  B.  Mon.  499;  Taylor  v.  Rountree, 
15  Lea,  725 ;  Buckley,  Ex  parte,  53 
Ala.  42 ;  Barnes  v.  Mayor,  etc.  19  id. 
707;  Bond  v.  Munro,  28  Ga.  597; 
State  V.  Bradford,  36  id.  422;  AU- 
husen  v.  Brooking,  L.  R.  26  Ch.  Div. 
564;  Evans  v.  Williams,  2  Drew.  & 
Sm.  324 ;  Marsh  v.  Higgins,  9  C.  B. 


551 ;  Waugh  v.  Mddleton,  8  Ex.  352 ; 
Couch  V.  McKee,  6  Ark.  484;  Gra- 
ham, Ex  parte,  13  Rich.  277 ;  Jolmson 
V.  Johnson,  52  Md  668 ;  Appeal  Tax 
Court  V.  Western,  etc.  R.  R.  Co.  50  id. 
274 ;  Blanchard  v.  Sprague,  3  Sumn. 
279;  Duval  v.  Malone,  14  Gratt.  28; 
Succession  of  Deyraud,  9  Rob.  (La.) 
357;  Nicholson  v.  Thompson,  5  id. 
367;  Gnidiy  v.  Rees,  7  La  278;  Gil- 
more  V.  Shuter,  2  Lev.  227 ;  Warder 
V.  Arell,  2  Wash.  (Va.)  282 ;  WaUace 
V.  Tahaf erro,  2  Call,  447 ;  EUiofs  Ex'r 
V.  Lyell,  3  id.  268 ;  Green  v.  Anderson, 
39  Miss.  359 ;  Commonwealth  v. 
Hewitt,  2  H.  &  IVL  181 ;  Ryan  v.  Com- 


KETEOACnVE   STATUTES.  601 

as  to  being  retrospective  is  doubtful  the  statute  will  be  con- 
strued as  prospective  only;  but  where  the  language  clearly 
indicates  that  it  was  intended  to  have  a  retrospective  effect, 
it  will  be  so  applied.^ 

§  464.  A  statute  should  not  receive  such  construction  as  to 
make  it  impair  existing  rights,  create  new  obligations,  impose 
new  duties  in  respect  of  past  transactions,  unless  such  plainly 
appear  to  be  the  intention  of  the  legislature.^  In  the  ab- 
sence of  such  plain  expression  of  design,  it  should  be  con- 
strued as  prospective  only,  although  its  words  are  broad  enough 
in  their  literal  extent  to  comprehend  existing  cases.'  A  gen- 
eral provision  that  the  statute  of  limitations  shall  run  against 
the  state  will  not  be  construed  retrospectively.^  A  statute  of 
limitations  which  does  not  purport  to  include  existing  cases 
will  be  applied  only  to  those  which  subsequently  arise.'  Al- 
though there  is  no  vested  right  in  an  office  which  may  not 
be  disturbed  by  legislative  enactment,  yet  to  take  away  the 
right  thereto  the  terms  of  the  statute  in  which  the  purpose  is 
stated  must  be  clear.^  A  statute  provided  that  every  will  de- 
vising or  purporting  to  devise  all  the  testator's  real  estate  shall 
be  construed  to  pass  all  the  real  estate  which  he  was  entitled  to 
devise  at  the  time  of  his  death.  It  w^as  held  to  be  prospective 
merely  and  did  not  operate  on  wills  previously  executed,  though 
the  testator  died  after  its  enactment.  Thus,  the  power  of  sale 
in  such  a  will  did  not  embrace  lands  acquired  after  the  will 
was  executed.  It  was  enacted  expressly  in  the  same  statute 
that  it  should  not  affect  the  construction  of  any  will  previ- 
ously made.'     A  new  constitutional  provision  as  to  the  ad- 

monwealth,    80   Va.    385;    State   v.  John.  477 ;  Wood  v,  Oakley,  11  Paige, 

Judge  Bermudez,  12  La-  353 ;    Mil-  400 ;  Johnson  v,  Burrell,  2  HlU,  238 ; 

ler  V.  Reynolds,  5  iVTa'-cia  (N.  S.),  665 ;  Butler  v.  Palmer,  1  Hill,  324 ;  Snyder 

Orr  V.  Rhine,  45  Tex.  345 ;  Crigler  v.  v.  Snyder,  3  Barb.  621 ;  Hackley  v. 

Alexander,  33  Gruu.  '374;    State  v.  Sprague,  10  Wend.  114;    McMannis 

Norwood,  12  IVtd.  195;  Quilter  v.  Ma-  v.  Butler,  49  Barb.  176;  In  re  Appli- 

pleson,  L.  R.  9.  Q  B.  Div.  672.  cation  of  Prot.  Ep.  P.  School,  58  Baib. 

1  State  V.  Norwood,  12  Md.  195.  161. 

2  Green  v.  Anderson,  39  JMiss.  359.  ■»  State  v.  Pmckney,  22  S.  C.  484 

3  Crigler  v.   Alexander,   33   Gratt  *  Pitman  v.  Bump,  5  Oregon,  17. 
674 ;  Campbell,  etc.  Co.  v.  Nonpareil,  ^  People  v.  Green,  58  N.  Y.  295. 
etc.  Co.  75  Va,  291 ;  Moon  v.  Burden  ^  Green  v.  Dikeman,  18  Barb.  535 ;. 
2  Exch.  22 ;  Dash  v.  Van  Kleeck,  7  Parker  v.  Bogardus,  5  N.  Y.  309. 


■602  KETKOACTIVE    STATUTES. 

vanced  age  which  should  prevent  the  incumbents  of  certain 
judicial  offices  from  retaining  them  was  held  prospective; 
it  did  not  apply  to  persons  in  office  at  the  time  of  its  tak- 
ino-  effect.  An  officer  was  elected  under  the  old  constitution 
by  the  provisions  of  which  he  was  eligible ;  a  new  constitu- 
tional provision  took  effect  on  the  same  day,  which  was  the 
first  day  of  the  official  term ;  he  was  held  in  office  so  as  to  be 
M'ithin  the  exemption.  It  was  held  also  that  it  was  not  in- 
tended by  the  new  judiciary  article  to  overthrow  or  disturb 
what  had  been  lawfully  done  under  and  in  pursuance  of  the 
constitution  and  laws  previously  existing.'  A  statute  pro- 
vided for  review  by  a  court  of  assessments  on  complaints, 
with  power  to  require  the  amount  erroneously  assessed  to  be 
deducted.  After  an  application  had  been  made  and  proof 
taken,  the  law  was  changed.  It  was  held  that  the  new  act  did 
not  apply  to  pending  cases.^ 

The  repeal  of  a  statute  giving  jurisdiction  takes  away  the 
right  to  proceed  in  pending  cases.^  Section  Yll  of  the  Revised 
Statutes  of  the  United  States,  which  provides  that  the  jurisdic- 
tion of  the  federal  courts  shall  be  exclusive  of  the  courts  of 
the  several  states  as  to  all  matters  and  proceedings  in  bank- 
ruptcy, was  held  not  to  affect  a  creditor's  bill  filed  in  a  state 
court  before  the  Eevised  Statutes  were  adopted.''  An  act 
which  extended  for  four  years  the  time  in  which  a  magistrate's 
execution  may  be  levied  Avithout  renewal  was  held  to  be  pro- 
spective and  not  to  embrace  executions  which  were  issued  be- 
fore it  was  passed.-^  A  statute  which  gave  the  probate  court 
the  power  to  entertain  biUs  of  review  of  its  own  decrees  and 
judgments  was  held  to  have  no  retrospective  operation  so  as 

1  People  .V.  Gardner,  59  Barb.  198.  Hampton  v.  Commonwealth,  19  id. 

2  In  re  Petition  of  Remsen,  59  Barb.  329 ;  Uwchlan  T.  Eoad,  30  id.  156 ;  Illi- 
317 ;  In  re  Petition  of  Eager,  58  id.  nois,  etc.  Canal  v.  Chicago,  14  111.  334 ; 
557 ;  In  re  Petition  of  Treacy,  59  id.  Macnawhoc  Plantation  v.  Thompson, 
525.  36  Me.  365;  Lamb  v.  Schottler,  54  Cat 

■'  Butler  V.  Palmer,  1  HUl,  324 ;  As-  319 ;  Smith  v.  Dist.  Com-t,  4  Colo.  235 ; 

sessor  v.  Osbornes,  9  Wall.  567 ;  Mc-  Hunt  v.  Jennings,  5  Blackf.  195. 

Cardie,   Ex  parte,  7   id.  506 ;   Balti-  ■*  Davis  v.  Lumpkin,  57  Miss.  506. 

more,  etc.  R.  R.  Co.  v.  Grant,  98  U.  S.  See  Farris  v.  Houston,  78  Ala.  250; 

398;SouthCarolinav.  Gaillard,101id.  Gholston  v.   Gholston,   54   Ga.   285; 

433 ;  North  Canal  St.  Road,  10  Watts,  McCool  v.  Smith,  1  Black,  459. 

351 ;  Fenelon's  Petition,  7  Pa.  St.  173 ;  ^  Briggs  v.  Cottrell,  4  Strob.  86. 


KETROACTIVE   STATUTES.  COti 

to  confer  upon  it  jurisdiction  of  a  bill  to  review  a  decree 
rendered  prior  to  the  passage  of  the  act.  A  statute  respecting 
the  title  of  personal  property,  requiring  tlie  deeds  thereof  to 
be  recorded  in  the  county  where  the  property  is,  was  held  not 
to  apply  to  conveyances  of  such  property  made  prior  to  the  pas- 
sage of  the  act.'  The  father  of  an  illegitimate  child,  begotten 
under  a  former  act,  but  born  under  a  new  act,  nuiy  be  com- 
pelled to  contribute  towards  its  support  by  a  prosecution  under 
the  latter.^  It  results  from  this  conservatism  that  retrospect- 
ive laws  will  be  strictly  construed.* 

§  4:65.  Ex  post  facto  laws. —  An  authoritative  exposition  of 
ex  post  facto  laws  was  given  in  an  early  case  by  the  supreme 
court  of  the  United  States.*  Chase,  J.,  said :  "  The  prohibition 
in  the  letter  is  not  to  pass  any  law  concerning  and  after  the 
fact,  but  the  plain  and  obvious  meaning  and  intention  of  the 
prohibition  is  this :  That  the  legislatures  of  the  several  states 
shall  not  pass  laws  after  a  fact  done  by  a  subject  or  citizen 
which  shall  have  relation  to  such  fact  and  shall  punish  him  for 
havin"-  done  it.  ...  I  do  not  think  it  was  inserted  to  secure 
the  citizen  in  his  private  rights  of  either  property  or  contracts. 
.  .  .  I  will  state  what  laws  I  consider  ex  jpost  facto  laws 
within  the  words  and  the  intent  of  the  prohibition :  1st.  Every 
law  that  makes  an  action  done  before  the  passing  of  the  law, 
and  whicli  was  innocent  when  done,  criminal,  and  punishes 
such  action.  2d.  Every  law  that  aggravates  a  crime,  or  makes 
it  greater  than  it  was  when  committed.  3d.  Ever^^  law  that 
changes  the  punishment  and  inflicts  a  greater  punishment  than 
the  law  annexed  to  the  crime  when  committed.  4th.  Every 
law  that  alters  the  legal  rules  of  evidence  and  receives  less 
or  different  testimony  than  the  law  required  at  the  time  of 
the  commission  of  the  offense,  in  order  to  convict  the  offender. 
All  these  and  similar  laws  are  manifestly  unjust  and  oppres- 
sive. In  my  opinion  the  true  distinction  is  between  ex  post 
facto  laws  and  retrospective  laws.  Every  ex  ijost  facto  law 
must  necessarily  be  retrospective,  but  every  retrospective  law 
is  not  an  ex  post  facto  law;  the  former  only  are  prohibited. 

1  Palmer  v.  Cross,  1  Sni.  &  M.  48.        Moon  v.  Burden.  2  Ex.  22 ;  Edmonds 

2  Willets  V.  Jeffries,  5  Kan.  470.  v.  Lawley.  6  M.  &  W.  285 ;  McCowan 

3  Hedger  v.  Rennaker,  3  Met.  (Ky.)    v.  Davidson,  43  Ga,  480. 

255 :  Couch  v.  Jeffries,  4  Burr.  2460 ;        *  Calder  v.  BuU,  3  DalL  386,  390. 


004  EETROACTIVE  STATUTES. 

Every  law  that  takes  away  or  impairs  rights  vested,  agree- 
ably' to  existing  laws,  is  retrospective,  and  is  generally  unjust 
and  may  be  oppressive ;  and  it  is  a  good  general  rule,  that  a 
law  should  have  no  retrospect ;  but  there  are  cases  in  which 
laws  may  justly,  and  for  the  benefit  of  the  community,  and 
also  of  individuals,  relate  to  a  time  antecedent  to  their  com- 
mencement, as  statutes  of  oblivion  or  of  pardon.  They  are 
certainl}^  retrospective  and  literally,  both  concerning  and  after 
the  facts  committed.  But  I  do  not  consider  any  law  ex  post 
facto  within  the  prohibition  that  mollifies  the  rigor  of  the 
criminal  law ;  but  only  those  that  create  or  aggravate  the 
crime  or  increase  the  punishment,  or  change  the  rules  of  evi- 
dence for  the  purpose  of  conviction.  Every  law  that  is  to  have 
an  operation  before  the  making  thereof,  as  to  commence  at  an 
antecedent  time,  or  to  save  time  from  the  statute  of  limita- 
tions, or  to  excuse  acts  which  were  unlawful,  and  before  com- 
mitted, and  the  like,  is  retrospective.  But  such  laws  may  be 
proper  or  necessary,  as  the  case  may  be.  There  is  a  great  and 
apparent  difference  between  making  an  unlawful  act  lawful 
and  the  making  an  innocent  action  criminal  and  punishing  it 
as  a  crime."  This  construction  of  the  constitutional  prohibition 
has  been  repeatedly  affirmed  in  later  cases.^  It  is  settled  that 
the  term  apj^lies  only  to  criminal  and  penal  cases,  and  was  not 
intended  to  prevent  retrospective  legislation  affecting  civil 
rights  of  persons  or  property.^ 

§  466.  Any  law  is  an  ex  post  facto  law  within  the  meaning 
of  the  constitution  if  passed  after  the  commission  of  a  crime 
charged  against  a  defendant,  which,  in  relation  to  that  offense 
or  its  consequences,  alters  the  situation  of  the  party  to  his 
disadvantage.'' 

§  467.  Procedure. —  A  statute  relating  to  procedure  is  not 
for  that  reason  beyond  the  reach  of  the  constitutional  inhibi- 
tion of  ex  post  facto  laws.     So  long  as  subsequent  laws  do  not 

1  Fletcher  v.  Peck,  6  Crancli,  138;  McCowan  v.  Davidson,  43  Ga.  480; 

Wilson  V.  Ohio,  etc.  R'y  Co.  64  111.  Ex  parte  Garland,  4  Wall.  390 ;  Ki-ing 

542 ;  Cummings  v.  Missouri,  4  WalL  v.  Missouri,  107  U.  S.  221. 
326.  3  Kring  v.  IMissoiu-i,  107  U.  S.  221 ; 

•^  Watson   V.    Mercer,   8    Pet.    88 ;  Wilson  v.  Ohio,  etc.  R'y  Co.  64  El. 

Fletcher  v.  Peck,  6  Cranch,  87 ;  Og-  542 ;  United  States  v.  HaJl,  2  Wash, 

den  V.  Saunders,  12  Wheat.  266 ;  Sat-  366 ;  Hopt  v.  Utah,  110  U.  S.  574 ;  Med- 

terlee   v.    Matthewson,  2  Pet   380 ;  ley,  In  re,  134  id.  160. 


EETROACTIVE  STATUTES.  605 

liave  tlie  effect  to  deprive  a  defendant  of  any  substantial  riglit 
which  he  had  touching  his  defense  as  the  law  stood  when  the 
offense  was  committed,  nor  alter  his  situation  in  rehition  to 
the  offense  or  its  consequences  to  his  disadvantage,  they  are 
not  ex  post  facto  within  the  meaning  of  that  inhibition."  A. 
^7as  convicted  of  murder  in  the  first  degree,  in  Missouri,  and 
the  judgment  of  condemnation  was  alhrmed  by  the  supreme 
<;ourt  of  the  state.  A  previous  sentence  pronounced  on  his 
plea  of  guilty  of  murder  in  the  second  degree,  and  subjecting 
him  to  imprisonment  for  twenty-five  years,  had  on  his  own 
appeal  been  reversed.  By  the  law  of  that  state  in  force  when 
the  homicide  was  committed,  this  sentence  was  an  acquittal  of 
the  crime  of  murder  in  the  first  degree ;  but  before  his  plea 
of  guilty  was  entered  the  law  was  changed,  so  that  by  force 
of  its  provisions  if  a  judgment  on  that  plea  be  lawfully  set 
aside,  it  shall  not  be  held  to  be  an  acquittal  of  the  higher 
crime.  It  was  held  that  as  to  this  case  the  new  law-  Avas  an 
ex  post  facto  law  withUi  the  meaning  of  section  10,  article  I,  of 
the  constitution  of  the  United  States,  and  that  he  could  not  be 
again  tried  for  murder  in  the  first  degree.  Mr.  Justice  Miller, 
delivering  the  opinion  of  the  court,  said:  "The  constitution 
of  Missouri  so  changes  the  rule  of  evidence  that  what  was  con- 
clusive evidence  of  innocence  of  the  higher  grade  of  murder 
when  the  crime  was  committed,  namely,  a  judicial  conviction 
for  a  lower  grade  of  homicide,  is  not  received  as  evidence  at 
all,  or,  if  received,  is  given  no  weight  in  behalf  of  the  offender. 
It  also  changes  the  punishment ;  for,  whereas  the  law  as  it 
stood  when  the  homicide  was  committed  was  that,  when  con- 
victed of  murder  in  the  second  degree,  he  could  never  be  tried 
or  punished  by  death  for  murder  in  the  first  degree,  the  new 
law  enacts  that  he  may  be  so  punished,  notwithstanding  the 
former  conviction." 

In  another  part  of  his  opinion  the  learned  justice  said :  "  It 
cannot  be  sustained,  without  destroying  the  value  of  the  con- 
stitutional provision,  that  a  law,  however  it  may  invade  or 
modify  the  rights  of  a  party  charged  with  crime,  is  not  an 
ex  post  facto  law,  if  it  comes  within  either  of  these  compre- 
hensive branches  of  the  law  designated  as  pleading,  practice 

1  Id. ;  Cooley,  C.  L.  329,  330 ;  Marion  v.  State,  20  Neb.  233 ;  29  N.  W.  Rep. 

911. 


606  EETROACTIVE  STATUTES. 

and  evidence.     Can  the  law  with  regard  to  bail,  to  indict- 
ments, to  grand  juries,  to  the  trial  jury,  all  be  changed  to  the 
disadvantage  of  the  prisoner  by  state  legislation  after  the  of- 
fense was  committed,  and  such  legislation  not  held  to  be  ex  post 
y«c^^,  because  it  relates  to  procedure?"     .     .     .     "And  can 
any  substantial  right  which  the  law  gave  the  defendant  at  the 
time  to  which  his  guilt  relates  be  taken  away  from  him  by  ex 
post  facto  legislation,  because,  in  the  use  of  a  modern  phrase, 
it  is  called  a  law  of  procedure?     "We  think  it  cannot."     After 
reviewing  the  course  of  decision  upon  the  associated  clause 
prohibiting  state  legislation  impairing  the  obligation  of  con- 
tracts, he  continues :  "  Why  is  not  the  right  to  life  and  liberty 
as  sacred  as  the  right  growing  out  of  a  contract?  "Why  should 
not  the  contio-uous  and  associated  words  in  the  constitution 
relating  to  retroactive  laws  on  these  two  subjects  be  governed 
by  the  same  rule  of  construction?     And  why  should  a  law, 
equally  injurious  to  rights  of  the  party  concerned,  be  under  the 
same  circumstances  void  in  one  case  and  not  in  the  other?" 
The  point  is  noticed  that  when  the  accused  pleaded  guilty 
of  murder  in  the  second  degree  the  new  constitution  was  in 
force,  which  altered  the  effect  of  conviction  for  the  lesser  de- 
gree of  the  offense  by  declaring  that  it  should  not  be  an  acquit- 
tal of  a  higher  degree.    The  answer  was :  "  Whether  it  is  ex  post 
facto  or  not  relates  to  the  time  at  which  the  offense  charged 
was  committed.     If  the  law  complained  of  was  passed  before 
the  commission  of  the  act  with  which  the  prisoner  is  charged,  it 
cannot,  as  to  that  offense,  be  an  ex  post  facto  law.     If  passed 
after  the  commission  of  the  offense  it  is  a^to  that  ex  post  facto, 
though  whether  of  the  class  forbidden  by  the  constitution 
may  depend  on  other  matters.     But  so  far  as  this  depends  on 
the  time  of  its  enactment,  it  has  reference  solely  to  the  date 
at  which  the  offense  was  committed  to  which  the  new  law  i& 
sought  to  be  appHed.     No  other  thne  or  transaction  but  this 
has  been  in  any  adjudged  case  held  to  govern  its  ex  post  facto 
character."  ^     This  decision  is  of  the  greatest  importance  in  its 
bearing  upon  the  effect  of  retrospective  laws  relating  to  pro- 
cedure.    Such  laws  must  be  tried  by  the  test  which  is  enun- 
ciated in  that  case.     Any  retroactive  law,  though  relating  to 
procedure,  which  deprives   the  prisoner   of  any  substantial 

1  Kring  v.  LOssouri,  107  U.  S.  221. 


EETKOACTIVE  STATUTES.  COT 

right  that  he  would  have  by  the  law  as  it  stood  at  the  time^ 
when  the  imputed  offense  was  committed,  or  which  as  to  that 
offense  or  its  consequences  alters  his  situation  to  his  disadvan- 
tage, is  an  ex  jyost  facto  law,  within  the  constitutional  prohi- 
bition,^ In  two  cases  which  originated  in  Missouri  the  supreme 
court  of  the  United  States  held  that  a  law  which  excluded  a 
minister  of  the  gospel  from  the  exercise  of  his  clerical  function 
and  a  lawyer  from  practice  in  the  courts  unless  each  would 
take  an  oath  that  he  had  not  engaged  in  or  encouraged  armed 
hostilities  against  the  government  of  the  United  States  was  an 
ex  post  facto  law  because  it  punished,  in  a  manner  not  before 
punished  by  law,  offenses  committed  before  its  passage,  and 
because  it  instituted  a  new  rule  of  evidence  in  aid  of  convic- 
tion,' A  statute  which  provided  that  "  every  surveyor  who  shall 
have  wilfully  and  knowingly  violated  the  instructions  of  the 
surveyor-general  in  not  marking  out  the  boundaries  of  lands 
formerly  granted,  and  which  are  within  surveys  by  him  or 
them  made,"  should  be  criminally  prosecuted,  was  held  ex  post 
facto?  A  statute  which  purports  to  authorize  the  prosecution, 
trial  and  punishment  of  a  person  for  an  offense  previously 
committed,  and  as  to  which  all  prosecution,  trial  and  punish- 
ment were,  at  the  time  of  its  passage,  already  barred  accord- 
ing to  the  pre-existing  statute  of  limitations,  is  unconstitutional 
and  void.''  The  repeal  of  a  general  statute  of  amnesty  is  ex 
post  facto  as  to  offenses  previously  committed.* 

§  468.  A  statute  rendering  ineligible  as  a  voter  or  office- 
holder any  person  who  teaches  or  practices  polygamy  or  be- 
longs to  an  association  encouraging  such  practice,  or  any 
other  crime,  and  providing  for  a  test  oath,  is  not  an  ex  po3t 
facto  law.®  A  statute  which  enlarges  the  class  of  persons  who 
may  be  competent  as  witnesses  is  not  ex  post  facto  in  its  appli- 
cation to  offenses  previously  committed,  for  it  does  not  attach 
criminality  to  any  act  previously  done,  and  which  was  inno- 

•Cooley,C.  L.  330.  v.  People,  26  N.  Y.  167;  Yeaton  v. 

2  Ciimmings  v.  Missouri,  4  Wall.  United  States,  5  Cr.  281 ;  In  re  Mur- 
277 ;  Garland,  Ex  parte,  id.  333.  phy,  1  Woolw.  141. 

3  State  V.  Solomons,  3  Hill  (S.  C),  96.  5  state  v.  Keith,  63  N.  C.  140. 

4  Moore  v.  State,  43  N.  J.  L.  203.  ^Wooley  v.  Watkins  (Idaho),  22^ 
See  State  v.  Sneed,  25  Tex.  (Supp.)  66 ;  Pac.  Rep.  102. 

State  V.  Keith,  63  N.  C.  140 ;  Hai-tixng 


(30S  RETROACTIVE    STATUTES. 

cent  when  done,  nor  aggravate  past  crimes,  nor  increase  the 
punishment  therefor ;  nor  does  it  alter  the  degree,  or  lessen 
the  amount  or  measure  of  the  proof  made  necessary  to  con- 
viction for  such  offenses.     Such  alterations  relate  to  modes  of 
procedure  only  Avhich  the  state  may  regulate  at  pleasure,  and 
in  which  no  one  can  be  said  to  have  a  vested  right.     Mr.  Jus- 
tice Harlan,  in  enunciating  this  doctrine  as  the  opinion  of  the 
-court,  said :  "  Alterations  which  do  not  increase  the  punish- 
ment, nor  change  the  ingredients  of  the  offense,  or  the  ulti- 
mate facts  necessary  to  estabhsh  guilt,  but  — leaving  untouched 
the  nature  of  the  crime  and  the  amount  or  degree  of  proof 
essential  to   conviction  —  only  remove  existing  restrictions 
upon  the  competency  of  certain  classes  of  persons  as  witnesses, 
relate  to  modes  of  procedure  only,  in  which  no  one  can  be  said 
to  have  a  vested  right,  and  which  the  state,  upon  grounds  of 
public  policy,  may  regulate  at  pleasure.    Such  regulations  of  the 
mode  in  which  the  facts  constituting  guilt  may  be  placed  before 
the  jury  can  be  made  applicable  to  prosecutions,  or  trials  there- 
after had,  without  reference  to  the  date  of  the  commission  of  the 
offense  charged."  '*■    It  had  been  previously  decided  by  the  same 
court  that  "  a  law  changing  the  place  of  trial  from  one  county 
to  another  county  in  the  same  district,  or  to  a  different  dis- 
trict from  that  in  which  the  offense  was  committed  or  the  in- 
dictment found,  is  not  an  ex  post  facto  law,  though  passed 
subsequent  to  the  commission  of  the  offense  or  the  finding  of 
the  indictment."  2     Statutes  are  not  ex  post  facto  which.  ])yo- 
vide  on  account  of  past  convictions  a  severer  penalty  for  repe- 
tition of  like  offenses  in  the  future.^    In  such  a  case  the  court 
said :  "  We  entertain  no  doubt  of  the  constitutionality  of  this 
section,  which  promotes  the  ends  of  justice  by  taking  away  a 
purely  technical  objection,  while  it  leaves  the  defendant  fully 
and  fairly  informed  of  the  nature  of  the  charge  against  him, 
and  affords  him  ample  opportunity  for  interposing  every  meri- 
torious defense.     Technical  and  formal  objections  of  this  nat- 
ure are  not  constitutional  rights."  * 

iHopt    V.   Utah,    110    U.   S.   574;  Raod  v.  Commonwealth,  9  Gratt.  738 ; 

Lauglilin  v.  Commonwealth,  13  Busli,  Ross'  Case,  2  Pick.  165. 

261.    See  Hart  v.  State,  40  Ala.  32.  *  Commonwealth  v.  Hall,  97  Mass. 

2  Gut  V.  State,  9  Wall.  35.  570. 

3  People    T.    Butler,   3  Cow.    347; 


RETROACTIVE  STATUTES. 


GOO 


§  4-60.  Acts  for  transferring  criminal  cases  to  another  court,^ 
or  providing  a  new  tribunal  or  giving  a  new  jurisdiction  to 
try  offenses  already  committed,^  do  not  al)ridge  any  right, 
and  are  not  ex  jpost  facto.  When  the  offense  was  committed 
the  jury  was  by  statute  judge  of  the  law.  This  act  was 
repealed  before  the  trial.  Such  change,  as  applied  to  tliat 
case,  was  held  not  ex  post  facto}  Nor  are  treaties  which  pro- 
vide for  surrender  of  persons  charged  with  previous  offenses ;  * 
nor  statutes  giving  additional  challenges  to  the  government ;  ^ 
statutes  reducing  the  defendant's  peremptory  challenges,**  or 
modifying  the  grounds  of  challenge  for  cause ;  ^  statutes  author- 
izing amendments  to  indictments;^  statutes  regulating  the 
framing  of  indictments  with  a  view  to  exclude  redundancies 
and  reduce  them  to  essential  allegations ;  ^  statutes  generally  to 
facilitate  the  routine  of  procedure  and  preclude  defendants 
from  taking  advantage  of  mere  technicalities  which  do  not 
prejudice  them.^"  Where  there  has  been  a  legal  conviction,  but 
an  erroneous  judgment  thereon,  which  resulted  according  to  the 
law  in  a  discharge  of  the  convict  on  reversal  of  the  judgment, 
a  law  enacted  subsequent  to  the  commission  of  the  crime, 
that  on  such  a  reversal  the  court  in  Avhich  the  conviction  was 
had  should,  on  return  of  the  record,  pass  such  sentence  thereon 
as  the  appellate  court  should  direct,  was  not  an  ex  post  facto 
law.^^ 

In  such  a  case,  Shaw,  C.  J.,  said,  with  reference  to  the  pro- 
visions of  such  a  statute :  "  They  relate  simply  to  errors  in  the 
imposition  of  sentences,  in  cases  where  neither  the  law  nor  the 

1  State  V.  Cooler,  8  S.  E.  Eep.  692.  «  Dowling  t.  State,  5  Sm.  &  M.  664 ; 

2  Commonwealth     v.    Phillips,    11  South  v.  State,  86  Ala,  617. 
Pick.  28 ;  Wales  v.  Belcher,  3  id  508 ;  ^  Stokes  v.  People,  53  N.  Y.  164. 
State  V.   Sullivan,  14  Rich.  L.  281;  SLasure  t.  State,  19  Ohio  St  43; 
Swing's  Case,  5  Gratt.  701.  State  v.  Manning.  14  Tex.  402 ;  Sulli- 

3  Marion  v.  State,  20  Neb.  233 ;  29  N.  van  v.  Oneida.  61  111.  242. 

W.  Rep.  911.  9  State  v.  Corson,  59  'Sle.  187 ;  State 

4  In  re  De  Giacomo,  12  Elatchf.  391.  v.  Learned,  47  id.  426. 

5  Jones  V.  State,  1  Ga.  610 ;  AValston  lo  Commonwealth  v.  Hah,  97  Mass. 
V.  Commonwealth,  16  B.  Men.  15;  570;  Lasm-e  v.  State,  19  Ohio  St  43. 
Walter  v.  People,  32  N.  Y.  147;  War-  "Ratzky  v.  People,  29  N.  Y.  124; 
ren  v.  Commonwealth,  37  Pa.  St  45 ;  Jacquins  v.  Commonwealth,  9  Cuah. 
State  V.  Ryan,  13  Minn.  370 ;  State  v.  279. 

Wilson,  48  N.  H.  398 ;  Commonwealth 
V.  Dorsey,  103  Mass.  412. 
39 


610  EETEOACTTVE  STATUTES. 

evidence  upon  which  the  convictions  rest  is  in  any  respect  im- 
puo-ned,  where  the  original  process  is  right,  the  facts  sufficient 
and  regularly  proved,  and  all  the  proceedings,  up  to  the  sen- 
tence, were  right,  and  where  the  alleged  error  is  in  the  sentence 
only.  Kow  is  this  act  retrospective  or  prospective?  It  cer- 
tainly refers,  in  its  terms,  to  the  future,  and  to  writs  of  error 
thereafter  to  be  brought.  It  was  competent  for  the  legisla- 
ture to  take  away  writs  of  error  altogether,  in  cases  where 
the  irregularities  are  formal  and  technical  only,  and  to  provide 
that  no  judgment  should  be  reversed  for  such  cause.  It  is 
more  favorable  to  the  party  to  provide  that  he  may  come 
into  court  upon  the  terms  allowed  by  this  statute  than  to  ex- 
clude him  altogether.  This  act  operates  like  the  act  of  limita- 
tions. Suppose  an  act  were  passed  that  no  writ  of  error 
should  be  taken  out  after  the  lapse  of  a  certain  period.  It  is 
contended  that  such  an  act  would  be  unconstitutional  on  the 
o-round  that  the  right  of  the  convict  to  have  his  sentence  re- 
versed  upon  certain  conditions  had  once  vested.  But  this  ar- 
gument overlooks  entirely  the  well-settled  distinction  between 
rights  and  remedies."  ^  A  subsequent  statute  requiring  the  de- 
fense of  insanity  to  be  specially  pleaded  at  the  arraignment  is 
not  ex ])ost  facto?  "  It  works  no  injustice,"  say  the  court,  "  to 
the  defendant  and  deprives  him  of  no  substantial  right  which 
he  would  otherwise  have.  It  is  not,  therefore,  objectionable 
as  an  ex  fost  facto  [law]  when  applied,  as  in  the  present  case, 
to  a  crime  already  committed  at  the  time  of  its  enactment,  any 
more  than  a  statute  authorizing  indictments  to  be  amended, 
or  conferring  additional  challenges  on  the  government,  or 
authorizing  a  change  of  venue,  or  other  like  statutes  regulat- 
ing the  mode  of  judicial  or  forensic  proceeding  in  a  cause."  * 

1  Jacquins  V.  Common  wealth,  supra,    nuisance  created  or  maintained  prior 

2  Perry  v.  State,  87  Ala.  30.  to  its  passage,  was  held  not  ex  post 

3  Id.  A  statute  of  Iowa  authorized  facto.  '•  This,"  say  the  court,  "  is  a 
the  ti-eatmer.t  of  traffic  in  intoxicat-  civil  not  a  criminal  proceeding,  and 
ing  liquors  as  a  nuisance  and  subject  the  provisions  of  the  statute  referred 
to  eqviitable  proceedings  for  abate-  to  relate  to  the  remedy.  The  right 
raent.  A  later  statute  authorized  the  to  a  particular  mode  of  procedm-e  is 
court  to  tax  an  attorney  fee  in  such  not  a  vested  one  which  the  state 
cases  agamst  the  defendant  and  to  cannot  change  or  abolish."  Drake  v. 
close  the  building  in  which  the  nui-  Jordan,  73  Iowa,  707 ;  86  N.  W.  Eep. 
Banco  had  been  maintained  for  one  653,  citing  Cooley,  C.  L.  (5th  ed.)  349, 
year.    This  latter  law,  applied  to  a  443 ;    Tilton  v.  Swift,  40  Iowa,  80 ; 


KETROACTIVE  STATUTES.  Gil 

§  470.  Cliange  of  punishment  by  subsequent  legislation.— 

Obviousl}^  enough  a  retrospective  statute  would  be  ex  post 
facto  which  increased  in  kind  the  punishment,  or  which 
added  new  elements  of  punishment.  But  there  has  been 
some  diversity  of  decision  where  the  punishment  has  been 
changed  and  on  the  whole,  as  judicially  considered,  has  thus 
been  made  less  severe.^  It  is  believed,  however,  that  at  the 
present  time,  the  doctrine  accepted  as  most  consonant  to  rea 
son  and  authority  is  that  laid  down  in  Hartung  v.  People.^ 
After  the  prisoner  had  been  convicted  of  murder  and  sen- 
tenced to  death,  and  while  her  case  was  pending  on  appeal,  the 
legislature  changed  the  law  for  the  punishment  of  murder 
in  general,  so  as  to  authorize  the  governor  to  postpone  indefi- 
nitely the  execution  of  the  sentence  of  death,  and  to  keep  the 
party  confined  in  the  penitentiary  at  hard  labor  until  he  should 
order  the  full  execution  of  the  sentence  or  should  pardon  or 
commute  it.  The  court  of  appeals  held  that  this  later  law  re- 
pealed all  laws  for  punishment  for  murders  theretofore  com- 
mitted. It  was  ex  ])ost  facto  as  to  that  case,  and  could  not  be 
applied  to  it.  Mr.  Justice  Denio  said :  "  It  is  highly  probable 
that  it  was  the  intention  of  the  legislature  to  extend  favor, 
rather  than  increased  severity,  towards  this  convict  and  others 
in  her  situation ;  and  it  is  quite  likely  that,  had  they  been  con- 
sulted, they  would  have  preferred  the  application '  of  this  law 
to  their  cases,  rather  than  that  which  existed  when  they  com- 
mitted the  offenses  of  which  they  were  convicted.  But  the 
case  cannot  be  determined  upon  such  considerations.  No  one 
can  be  criminally  punished  in  this  country,  except  according  to 
a  law  prescribed  for  his  government  by  the  sovereign  authority 
before  the  imputed  offense  was  committed,  and  which  existed 
as  a  It^w  at  that  time.  It  would  be  useless  to  speculate  upon 
the  question  Avhether  this  would  be  so  upon  the  reason  of  the 
thing,  and  according  to  the  spirit  of  our  legal  institutions,  be- 
cause the  rule  exists  in  the  form  of  an  express  written  precept, 
the  binding  force  of  which  no  one  disputes.      ...     It  is 

Wormley  v.  Hamburg,  id.  25 ;  Eqiiita-  Herber  v.  State,  7  Tex.  69 ;  Mclnturf 

ble  L.  Ins.  Co.  v.  Gleason,  56  id.  48 ;  v.  State,  20  Tex.  App.  335 ;  Qarke  v. 

County  of  Kossuth  v.  Wallace,  60  id.  State,  23  Miss.  261 ;  State  v.  Arliu,  89 

508.  N.  H.  179 ;  Timier  v.  State,  40  Ala.  21. 
1  See  Strong  v.  State,  1  Blackf.  193 ;        2  oo  n.  Y.  95, 


612  EETKOACTIYE  STATUTES. 

enouo-h  to  brino;  the  law  within  the  condemnation  of  the  con- 
stitution  that  it  changes  the  punishment,  after  the  commission 
of  the  offense,  by  substituting  for  the  prescribed  penalty  a 
different  one.  We  have  no  means  of  saying  whether  one  or 
the  other  would  be  the  most  severe  in  a  given  case.  That 
would  depend  upon  the  disposition  and  temperament  of  the 
convict.  The  legislature  cannot  thus  experiment  upon  the 
criminal  law.  .  .  .  It  is  enough,  in  my  opinion,  that  it 
changes  it  in  any  manner,  except  by  dispensing  with  divisible 
portions  of  it.  .  .  .  An3^thing  which,  if  applied  to  an 
individual  sentence,  would  fairly  fall  within  the  idea  of  a  re- 
mission of  a  part  of  the  sentence,  would  not  be  liable  to 
objection.  Any  change  which  should  be  referable  to  prison 
discipline  or  penal  administration  as  its  primary  object  might 
also  be  made  to  take  effect  upon  past  as  well  as  future  of- 
fenses ;  as  changes  in  the  manner  or  kind  of  employment  of 
convicts  sentenced  to  hard  labor,  the  system  of  supervision,  the 
means  of  restraint,  or  the  like.  Changes  of  this  sort  might 
operate  to  increase  or  mitigate  the  severity  of  the  punishment 
of  the  convict;  but  would  not  raise  any  question  under  the 
constitutional  provision  "  against  ex  post  facto  laws.^ 

In  'Commonwealth  v.  McDonough  -  it  was  held  that  a  law 
passed  after  the  commission  of  the  offense,  which  mitigated  the 
punishment,"  as  regarded  the  fine  and  the  maximum  of  imprison- 
ment that  might  be  inflicted,  was  an  ex  post  facto  law  as  to  that 
case,  because  the  minimum  of  imprisonment  was  made  three 
months,  whereas  before  there  was  no  minimum  limit  to  the 
court's  discretion.  This  slight  variance  in  the  law  was  held  to 
make  it  ex  post  facto  and  void  as  to  that  case,  though  the  effect 
of  the  decision  was  to  leave  no  law  by  which  the  defendant  could 
be  punished,  and  he  was  discharged,  though  found  guilty  of  the 
offense.  As  to  a  defendant  convicted  of  carrying  a  concealed 
weapon,  an  amended  law  was  held  ex  post  facto,  first,  because 
it  abrogated  the  right  which  before  existed  of  defending 
against  the  charge  on  the  ground  that  he  had  good  and  suffi- 

1  Shepherd  v.  People,  25  N.  Y.  406 ;  Petty,  22  Kan.  477 ;  Gai-vey  v.  People, 

Ratzkey  v.  People,  29  id,  124 ;  Kuck-  6  Cal.  554 ;   State  v.   Willis.  66  Mo. 

ler  V.   People,  5  Park.   Cr.   R.   212;  131;   Marion  v.  State,  16  Neb.  349; 

Carter  v.  Burt,  12  Allen,  424 ;  Green  State  v.  Cooler,  8  S.  E,  Rep.  692. 

T.    Shumway,  39    N.  Y.  418;  In  re  -' 13  Allen,  581. 


EETKOACjnVE    STATUTES.  CI 3 

cient  reason  to  apprehend  an  attack,  and  made  an  act  criminal 
which  was  not  so  at  the  time  the  amendment  was  passed,  and 
because  it  changed  but  did  not  mitigate  the  punishment  for  the 
offense.  "There  has  been  much  diversity  of  opinion,"  said 
Arnold,  C.  J., "  as  to  what  would  constitute  mitigation  of  punish- 
ment in  such  a  case ;  but  the  view  best  sustained  by  reason  and 
authority  is,  that  a  law  changing  the  punishment  of  offenses 
committed  before  its  passage  is  objectionable,  as  being  ex  post 
facto,  unless  the  change  consists  in  the  remission  of  some  sep- 
arable part  of  the  punishment  before  prescribed,  or  is  referable 
to  prison  discipline  or  administration  as  its  primary  object.^ 
It  is  enough  for  courts  to  render  judgment  according  to  law, 
without  being  required  to  determine  the  relative  severity  of 
different  punishments,  when  there  is  no  common  standard  in 
the  matter  by  which  the  mind  can  be  satisfactorily  guided."^ 
§  471.  Laws  impairiiig  obligatiou  of  contracts.— The  fed- 
eral constitution  provides  that  no  state  shall  pass  any  law 
impairing  the  obhgation  of  contracts.*  The  obligation  of 
a  contract  is  the  law  which  binds  the  parties  to  perform 
their  agreement.*  It  is  the  means  provided  by  law  by  which 
it  can  be  enforced,  by  which  the  parties  can  be  obliged  to 
perform  it.  Whatever  legislation  lessens  the  efficacy  of  these- 
means  impairs  the  obligation.'*  A  contract  valid  at  its  incep- 
tion cannot  be  made  invalid,  its  construction  changed,  or  the 
remedy  thereon  taken  away  or  materiaUy  impaired,  by  sub- 
sequent legislation.  The  laws  which  exist  at  the  time  and 
place  of  the  making  of  a  contract  determine  its  validity,  con- 
struction, discharge,  and  measure  of  efficiency  for  its  enforce- 
ment.*" A  statute  of  frauds  embracing  a  pre-existing  parol 
contract  not  before  required  to  be  in  writing  would  affect  its 
validity.  A  statute  declaring  that  the  word  "ton"  should 
thereafter  be  held,  in  prior  as  well  as  subsequent  contracts,  to 

•  Cooley,  C.  L.  329.  den  v.  Saunders,  supra;  Bronson  v. 

-Lindzey  v.  State,  65   Miss.   542;  Kinzie,  1  How.  319;    McCracken  v. 

Cooley,  C.  L.  324  Hayward,  2  id.  612 ;  Walker  v.  VVliite- 

3  Art  I,  sec.  10.  head,  16  Wall.  314 ;  Von  Hoffman  v. 

*Ogdenv.Saimders,  12  Wheat.  213;  Quiucy.   4  Wall.    535:    Edwards   v, 

Sturges  V.  Crowninshield.  4  icL  122.  Kearzey,  96  U.  S.  595 ;  Tennessee  v. 

5  Louisiana    v.   New    Orleans,   102  Snoed.    id.    69;    Mason  v.  Haile,   12 
U.  S.  203.  Wheat  370. 

6  Green  v.  Biddle,  8  Wheat  92 ;  Og- 


614  EETKOACTIVE  STATUTES. 

mean  half  or  double  the  weight  before  prescribed,  M-ould  af- 
fect its  construction.  A  statute  providing  that  a  previous 
contract  of  indebtment  may  be  extiDguished  by  a  process  of 
bankruptcy  would  involve  its  discharge ;  and  a  statute  forbid- 
ding the  sale  of  any  of  the  debtor's  property  under  a  judg- 
ment upon  such  a  contract  would  relate  to  the  remedy.  It 
cannot  be  doubted,  either  upon  principle  or  authority,  that 
each  of  such  laws  passed  by  a  state  would  impair  the  obhgiir 
tion  of  the  contract,  and  the  last  mentioned  not  less  than  the 
first.i 

§  472.  The  prohibition  has  been  considered  as  extending  to 
contracts  executed  and  executory ;  to  conveyances  of  land  as 
well  as  commercial  contracts ;  to  pubhc  grants  from  the  state 
to  corporations  and  individuals,  as  well  as  private  contracts 
between  citizens ;  to  grants  and  charters  in  existence  when  the 
constitution  was  adopted  and  even  before  the  revolution,  and 
to  compacts  between  the  different  states  themselves.^  "  An 
executed  contract,"  says  Chief  Justice  Marshall,  "  as  weU  as 
one  which  is  executory,  contains  obligations  binding  on  the 
parties.  A  grant,  in  its  own  nature,  amounts  to  an  extin- 
guishment of  the  right  of  the  grantor,  and  implies  a  contract 
not  to  re-assert  that  right.  A  party  is  therefore  always  es- 
topped by  his  own  grant.  Since,  then,  in  fact,  a  grant  is  a 
contract,  the  obligation  of  which  stiU  continues,  and  since  the 
constitution  uses  the  general  term  '  contract,'  without  distin- 
guishing between  those  which  are  executory  and  those  which 
are  executed,  it  must  be  construed  to  comprehend  the  latter 
as  weU  as  the  former.  A  law  annulling  conveyances  betwe.'n 
individuals,  and  declaring  that  the  grantors  should  stand  seized 

1  Von  Hoffman  v.  Quiacy,  4  "VValL  cisco,  18  id.  590 ;  People  v.  Piatt,  17 
652.  John.    195;    Rehoboth    v.    Hunt,    1 

2  Ogden  V.  Saunders,  12  Wlieat.  217 ;  Pick.  224 ;  Lowry  v.  Francis,  2  Yerg. 
Fletcher  v.  Peck,  6  Cr.  87 ;  New  Jer-  534 ;  State  v.  Barker,  4  Kan.  379, 435 ; 
Bey  V.  Wilson,  7  id.  164 :  Terrett  v.  University  of  North  Carolina  v.  Fay, 
Taylor,  9  id.  43 ;  Town  of  Pawlet  v.  1  Murph.  58 ;  AVabash,  etc.  Co.  v. 
Clark,  id.  292 ;  Dartmouth  CoUege  v.  Beers,  2  Black,  448 ;  State  Bank  v. 
Woodward,  4  Wheat  518 ;  Society,  Knoop,  16  How.  369 ;  Hartman  v. 
etc.  V.  New  Haven,  8  id.  464,  481 ;  Greenhow,  102  U.  S.  672 ;  Hawkms 
Green  v.  Biddle,  id.  1;  Davis  v.  v.  Barney's  Lessee,  5  Pet.  457;  De 
Gray,  16  Wall.  203 ;  Hall  v.  Wiscon-  Graflf  v.  St.  Paul,  etc.  R  R.  Co.  23 
pin,  103  U.  S.  5 ;  IMontgomery  v.  Kas-  Minn.  144 ;  Robertson  v.  Land  Corn- 
son,  16  CaL  189 ;  Grogan  v.  San  Fran-  missioner,  44  Mch.  274. 


KETROACnVE    STATUTES. 


ci; 


of  their  former  estates,  notAvithstanding  these  grants,  would 
be  as  repugnant  to  the  constitution  as  a  law  discharging  the 
vendors  of  property  from  the  obligation  of  executing  their 
contracts  by  conveyances."  ^  Wlien  a  state  becomes  a  party 
to  a  contract,  the  same  rules  of  law  are  ap|)lied  to  her  as  to 
private  persons  under  like  circumstances.^  So  when  the  state, 
as  such,  or  any  lesser  pubhc  corporation,  makes  a  grant,  or 
otherwise  contracts,  it  is  bound  by  its  obligations  by  the  same 
supreme  and  paramount  rule.  ^ 

§  473.  Charters  creating  corporations  for  private  purposes, 
laws  giving  franchises,  bounties  to  encourage  enterprise  and  ex- 
penditures, and  patents  and  copyrights,  or  any  exclusive  privi- 
lege, are  also  inviolable  contracts,  the  obligations  of  Avhich  are 
secured  by  the  constitutional  provision  under  consideration.* 
It  does  not  apply  to  municipal  charters  or  oflBces ;  they  are 
mere  agencies  of  government,  and,  except  as  specially  re- 
strained by  other  constitutional  restrictions,  are  within  the 
continued  exclusive  control  of  the  legislature.^     Counties  and 


1  Fletcher  v.  Peck,  6  Cranch,  87, 
136. 

2  Davis  V.  Gray,  16  WaU.  233. 

3  Cincinnati,  etc.  R.  R  Co.  v.  Car- 
thage, 36  Ohio  St.  631 ;  State  v.  Com- 
missioners, etc.  4  Wis.  414. 

4  Slaughter-House  Cases,  16  Wall. 
36,  74 ;  Dartmouth  CoUege  v.  Wood- 
ward, 4  Wheat.  518;  Planters'  Bank 
V.  Sharp,  6  How.  391;  l^iistees  of 
V.  University"  v.  Indiana,  14  How. 
268 ;  State  Bank  v.  Knoop,  16  How. 
369 ;  State  v.  Hey  ward,  3  Rich.  389 ; 
Norris  v.  Trastees,  etc.  7  G.  &  J.  7 ; 
Grammar  School  v.  Burt,  11  Vt  632; 
Commonwealth  v.  CuUen,  13  Pa.  St. 
133;  Backus  v.  Lebanon,  11  N.  H. 
19 ;  State  v.  Noyes,  47  Me.  189 ;  Bank 
of  Natchez  v.  State,  6  Sm.  &  M.  599 ; 
Peojjle  V.  Manhattan  Co.  9.  Wend.  351 ; 
INIiuers'  Bank  v.  United  States,  1 
Greene  (la.),  553;  Bridge  Co.  v.  Ho- 
bokeu  Co.  13  N.  J.  Eq.  bl ;  Michigan 
State  Bank  v.  Hasitings,  1  Dougl. 
(Mich.)  227 ;  People  v.  Jackson,  etc. 
Plank  Road  Co.  9  Mich.  285;  Haw- 
thorne V.  Calef,  2  Wall.  10 ;  Bank  of 


the  Dominion  v.  McVeigh,  20  Gratt. 
457 ;  Bank  of  the  State  v.  Bank  of  Cape 
I'ear,  13  Ired.  75 ;  Mills  v.  Wilhams, 
11  id-  558 ;  Wales  v.  Stetson,  2  Mass. 
143 ;  Nichols  v.  Berti-am,  3  Pick.  342 ; 
King  V.  Dedham  Bank,  15  Mass.  447 ; 
Turnpike  Co.  v.  Davidson  Co.  3  Tenru 
Ch.  396 ;  Sloan  v.  Pacific  Co.  61  Mo. 
24 ;  Central  Bridge  v.  Lowell.  15  Gray, 
106;  State  v.  Richmond,  etc.  R  R. 
Co.  73  N.  C.  527 ;  Detroit  v.  Plank 
Road  Co.  43  Mich.  140 ;  Bruffett  v.  G. 
W.  R.  R.  Co.  25  111.  353 ;  State  v.  Tom- 
beckbee  Bank,  2  Stew.  30 ;  Edwards 
V.  Jagers.  19  Ind.  407;  People  v. 
Board  of  State  Auditors,  9  Mich.  327. 
0  Butler  V.  Pennsjdvania,  10  How. 
402;  United  States  v.  Hartwell,  6 
WaU.  385 ;  Newton  v.  Commission- 
ers, 100  U.  S.  559 ;  Koontz  v.  Franklin 
Co.  76  Pa.  St.  754 ;  French  v.  Common- 
wealth, 78  Pa.  St.  339;  Augusta  v. 
Sweeney,  44  Ga.  463;  Opinion  of 
Justices,  117  Mass.  603;  People  v. 
Green,  58  N.  Y.  295:  Wyandotte  v. 
Drennan,  46  ^lich.  478 :  State  v.  Kalb 
50  Wis.  178 ;  People  v.  Power,  25  111. 


C16  EETKOACTIVK  STATUTES. 

towns  are,  as  to  their  corporate  existence,  completely  within 
such  control.  They  may  be  changed,  altered,  enlarged,  dimin- 
ished or  extinguished  by  the  mere  act  of  the  legislature.^  And 
all  private  corporations  and  grantees  of  franchises  are  subject 
to  the  exercise  of  all  essential  powers  of  government  —  to 
taxation,"  so  far  as  not  contracted  away  upon  consideration^ 
to  the  power  of  eminent  domain  and  of  police.'  The  legis- 
lative power  of  a  state,  except  so  far  as  restrained  by  its  own 
constitution,  is  at  all  times  absolute  with  respect  to  all  offices 
within  its  reach.  It  may  at  pleasure  create  or  abolish  them, 
or  modify  their  duties.  It  may  also  shorten  or  lengthen  the 
term  of  service.  It  may  increase  or  diminish  the  salary  or 
change  the  mode  of  compensation.^ 

§  474.  The  objection  to  a  law  on  the  ground  of  its  impair- 
ing the  obligation  of  a  contract  can  never  depend  upon  the 
extent  of  the  change  which  the  law  effects  in  it.  Any  devia- 
tion from  its  terms  by  postponing  or  accelerating  the  period 
of  performance  which  it  prescribes,  imposing  conditions  not 
expressed  therein,  or  dispensing  with  those  which  are,  how- 
ever minute  or  apparently  immaterial  in  their  effect  upon 
the  contract  of  the  parties,  impairs  its  obligation.^  Where 
municipal  bonds  have  been  put  upon  the  market  as  commer- 
cial paper,  the  rights  of  the  parties  thereto  are  to  be  deter- 
mined according  to  the  statutes  of  the  state  as  they  were  then 

187,  181 :   Sangamon  Co.  v.  Spring-  apolis,  etc.  R.  R.  Co.  v.  Kercheval,  16 

field,  63  111.  66 ;  Borough  of  Dunmore's  IncL  84 ;  Bradley  v.  McAtee,  7  Bush, 

Appeal,  52  Pa.  St.  374 ;    Guilford  v.  667 ;  State  v.  Noyes,  47  Me.  189 ;  Van- 

CorneU,  18  Barb.  615 ;  Guilford  v.  Su-  derbilt  v.  Adams,  7  Cow.  349 ;  State 

pei-visors,  13  N.  Y.  143 ;  Ricliland  Co.  v.    Sterling,    8  Mo.    697 ;    Calder  v. 

V.  Ricliland  Center,  59  Wis.  591.  Kurby,  5  Gray,  597 ;  Him  v.  State,  1 

1  Id. ;  Beckwith  v.  Racine,  7  Biss.  Oluo  St  15 ;  Toledo,  etc.  R.  R.  Co. 
142.  V.  Jacksonville,  67  IlL  37;   Chicago 

2  Cooley,  C.  L.  340.  Packmg  Co.  v.  Chicago,  88  IlL  221 ; 

3  Matter  of  Ken-,  42  Barb.  119;  People  v.  Commissioners,  59  N.  Y. 
West  River  Br.  Co.  V.  Dix,  16  Vt.  446 ;  92;  Beer  Co.  v.  Massachusetts,  97 
6  How.  507 ;  Enfield  Toll  Br.  Co.  v.  U.  S.  25 ;  Fertihzing  Co.  v.  Hyde 
Hartford,  etc.  R.  R.  Co.  17  Conn.  40,  Park,  id.  659 ;  Stone  v.  Mississippi, 
454 ;  Providence  Bank  v.  BilUngs,  4  101  U.  S.  814. 

Pet.  514;  Thorpe  v.  R.  &  B.  R.  R.  Co.  ■»  Butler  v.  Pennsylvania,  10  How. 

27  Vt  140;  McCulloch  v.  Maryland,  402;  Newton  v.  Commissioners,  100 

4  Wheat  327 ;  Ohio,  etc.  R.  R  Co.  v.  U.  S.  559. 

McClelland,   25  IlL    140;    Osborn  v.  5  Green  v.   Biddle,   8  Wheat    84; 

Bank  of  U.  S.  9  Wheat  738 ;  Indian-  Planters'  Bank  v.  Sharp,  6  How.  337. 


EETROACTIVE  STATUTES.  617 

c<  nstrued  by  her  highest  court ;  and  in  a  case  involving  those 
rights  the  supreme  court  of  the  United  States  will  not  be 
governed  by  any  subsequent  decision  in  conflict  with  that 
under  which  they  became  payable.  The  settled  judicial  con- 
struction of  a  statute,  so  far  as  contract  rights  were  there- 
under acquired,  is  as  much  a  part  of  the  statute  as  the  text 
itself,  and  a  change  of  decision  is  the  same  in  effect  on  pre- 
existing contracts  as  a  repeal  or  an  amendment  by  legislative 
enactment.^  A  bankrupt  or  insolvent  law  of  any  state,  which 
discharges  both  the  person  of  the  debtor  and  his  future  acqui- 
sitions of  property,  is  not  "  a  law  impairing  the  obligation  of 
contracts,"  so  far  as  respects  debts  contracted  subsequent  to 
the  passage  of  such  law.  But  a  certificate  of  discharge,  under 
such  a  law,  cannot  be  pleaded  in  bar  of  an  action  brought  by 
a  citizen  of  another  state  in  the  courts  of  the  United  States  or 
of  any  other  state  than  that  where  the  discharge  was  ob- 
tained.'^ A  law  which  authorizes  the  discharge  of  a  contract 
by  the  payment  of  a  smaller  sum  or  at  a  different  time  or  in  a 
different  manner  than  the  parties  have  agreed  impairs  its  obli- 
gation by  substituting  for  the  compact  of  the  j)arties  a  legis- 
lative act  to  which  they  have  never  assented.*  "  It  is  within 
the  undoubted  power  of  state  legislatures  to  pass  recording 
acts  by  which  the  elder  grantee  shall  be  postponed  to  a  younger, 
if  the  prior  deed  is  not  recorded  within  a  limited  time ;  and  the 
power  is  the  same  whether  the  deed  is  dated  before  or  after 
the  passage  of  the  recording  act.  Though  the  effect  of  such  a 
deed  is  to  render  the  prior  deed  fraudulent  and  void  as  against 
a  subsequent  purchaser,  it  is  not  a  law  impairing  the  obliga- 
tion of  contracts."*  Contracts  made  in  violation  of  some 
interest  or  revenue  regulation  may  be  validated  by  repeal  of 
such  regulation.  In  validating  a  void  contract  its  obligations 
are  not  impaired,  but  legal  impediments  to  its  enforcement 
according  to  the  intention  of  the  parties  are  removed.^  A 
corporation  charter  is  not  subject  to  forfeiture  for  acts  or  omis- 

1  Douglass  V.  Pike  Co.  101  U.  S.  677.  5  Satterlee  v.   Matthewson,  2  Pet 

-  Ogden  V.  Saunders,  12  Wheat.  213.  406 ;  Gibson  v.  Hibbaid,  13  Midi.  214 ; 

See  Denny  v.  Bennett.  128  U.  S.  439.  Welch  v.  Wadswortli,  30  Conn.  149 ; 

3  Golden  v.  Prince,  3  Wash.  313.  Wood  v.  Kennedy,  19  Ind.  68.    See 

*  Jackson  v.  Lampliire,  3  Pet  290.  Baugher  t.  Nelson,  9  Gill,  299. 


618  KETEOACTIVE  STATUTES. 

sions  which  were  not  causes  of  forfeiture  at  the  time  they 
occurred.^  If,  when  a  private  corporation  contracts  a  debt,  its 
stockholders  are  under  a  certain  liability  by  law,  this  laAV  can- 
not, as  to  creditors  becoming  such  while  it  existed,  be  re- 
pealed.- So  a  statute  imposing  liabilities  on  stockholders  in 
a  corporation  to  which  they  were  not  subject  by  the  charter 
or  general  law  under  which  the  corporation  was  organized  is 
unconstitutional.'' 

§  475.  The  prohibition  of  the  constitution  against  the  pas- 
sage of  laws  impairing  the  obligation  of  contracts  applies  to 
the  contracts  of  the  state,  and  to  those  of  its  agents  acting 
under  its  authority,  as  well  as  to  those  between  individuals. 
And  that  obligation  is  impaired,  in  the  sense  of  the  constitu- 
tion, when  the  means  by  which  a  contract  at  the  time  of  its 
execution  could  be  enforced  —  that  is,  by  w^hich  the  parties 
could  be  obliged  to  perform  it  —  are  rendered  less  efficacious  by 
legislation  operating  directly  upon  those  means.^  As  long  as 
a  city  exists,  laws  are  void  which  withdraw  or  restrict  her 
taxing  power,  so  as  to  impair  the  obligation  of  her  contracts 
made  upon  a  pledge,  expressly  or  impliedly  given,  that  it  shall 
be  exercised  for  their  fulfillment.^  A  statute  authorized  a  city 
to  issue  bonds  to  a  specified  amount,  and,  among  other  strin- 
gent provisions  to  secure  their  prompt  payment,  prohibited 
the  subsequent  issue  of  any  other  bonds,  for  any  other  pur- 
pose whatever,  except  in  payment  of  such  bonded  debt.  It 
was  held  that  the  holders  of  those  bonds  were  entitled  to  the 
benefit  of  this  restriction  as  a  most  material  element  of  the 
contract,  and  that  it  was  not  subject  to  legislative  repeal  and 
amendment  so  as  to  impair  the  right  or  diminish  the  security 
without  their  consent.^    "Where  a  municipal  corporation  has 

1  People  V.  Jackson,  etc.  PL  R.  Co.  5  Wolff  v.  New  Orleans,  103  TJ.  S. 
9  Mich.  285.  358 ;  State  v.   Madison,   15  Wis.  30 ; 

2  Hawthorne  v.  Calef,  2  Wall.  10;  Von  Bavimbach  \.  Bade,  9  id.  559; 
Coming  v.  IVIcCiillough,  1  N.  Y.  47 ;  Phelps  v.  Eooney,  id  70. 

Story  V.  Furman,  25  N.  Y.  214;   Nor-  6  Smith  v.  Appleton,  19  Wis.  468; 

ris  V.  Wrenschall,  34  Md.  492.  People  v.  Woods,  7  Cal.  579 ;  People 

3  Ireland  v.  Palestine,  etc.  T.  Co.  19  v.  Bond,  10  id.  563 :  Munday  v.  Eah- 
Ohio  St.  369.  way,  43  N.  J.  L.  338 ;  Board  of  Liq- 

« Wolff  V.  New  Orleans,  103  U.  S.     nidation  v.  McComb,  92  U.  S.  531. 
358,  367. 


EETKOACTIVE  STATUTES.  G19 

lawfully  issued  its  bonds  for  specified  sums,  to  bear  interest  at 
a  stated  rate,  it  cannot  subsequently  provide  for  taxing  that 
debt,  and  for  detaining  a  part  of  it  for  payment  of  the  tax.' 

§  4:70.  Change  of  remedy. —  The  constitutional  provision  is 
a  negation.  No  law  is  permitted  to  be  enacted  to  impair  the 
obligation  of  contracts.  There  is  no  mandate  to  enact  laws 
for  their  enforcement.  Eemedics  exist  in  the  common  law. 
And  courts  are  supposed  to  exist  throughout  the  states  with 
competent  jurisdiction.  The  practical  question  arises  upon 
changes  in  the  law  —  upon  affirmative  legislation.  Nothing 
is  more  material  to  the  obligation  of  a  contract  than  the  means 
of  its  enforcement.  The  ideas  of  validity  and  remedy  are  in- 
separable, and  both  are  parts  of  the  obligation  which  is  guar- 
antied by  the  constitution  against  impairment.'-  If  legislation 
"  tends  to  postpone  or  retard  the  enforcement  of  the  contract, 
the  obligation  of  the  latter  is  to  that  extent  weakened.  The 
Latin  proverb,  q^d  ciio  dat  his  dat,- —  he  who  gives  quicldy 
gives  twice, —  has  its  counterpart  in  a  maxim  equally  sound, — 
qui  serius  solvit,  minus  solvit, —  he  who  pays  too  late,  pays 
less.  Any  authorization  of  the  postponement  of  payment,  or 
of  means  by  which  such  postponement  may  be  effected,  is  in 
conflict  with  the  constitutional  inhibition."  *  The  rule  affirmed 
by  the  court  of  last  resort  is  that  in  modes  of  proceeding  and 
forms  to  enforce  the  contract  the  legislature  has  the  con- 
trol, and  may  enlarge,  limit  or  alter  them,  provided  that  it 
does  not  deny  a  remedy,  or  so  embarrass  it  with  conditions  as 
to  seriously  impair  the  value  of  the  right.^  If  a  particular 
form  of  proceeding  is  prohibited,  and  another  is  left  or  is  pro- 
vided which  affords  an  effective  and  reasonable  mode  of  en- 
forcing the  right,  the  obligation  of  the  contract  is  not  im- 
paired.^    A  statutory  provision  requiring  a  plaintiff  having  an 

iMuiTay  V.   Charleston,  96  U.  S.  » Id. ;     Huntzinger     v.     Brock,    3 

432.  Grant's  Cas.   243;    Evans    v.   Mont- 

2  Walker  v.  Wliitehead,  IG  Wall.  314.  goniery,  4  Watts  &  S.  218 ;  McDaniel 

3  Louisiana  v.  New  Orleans,  102  v.  Webster,  2  Houst.  305;  Read  v. 
U.  S.  203,  per  Field,  J.  Bank,  28  Me.  318 ;  Walker  v.  Wliite- 

4  Tennessee  v.  Sneed,  96  U.  S.  G9 :  head,  16  Wall.  314 ;  Von  Hoflfman  v. 
Bronson  v.  Kinzie,  1  How.  311;  Qiiiucy,  4  id.  552 ;  Pollard,  Ex  parte, 
Sturges  V.  Crowninshield,  4  Wheat.  40  Ala.  77 ;  Nelson  v.  ^McCrary,  60  id. 
122 ;  Mason  V.  Haile,  12  id.  370 ;  Green  301 ;  Collins  v.  East  Teun.  etc.  R.  K. 
V.  Biddle,  8  V\Tieat.  92 ;  White  v.  Co.  9  Heisk.  841 :  Williams  v.  Weaver, 
Hai-t,  13  WalL  646.  94  N.  C.  134 ;  Cutts  v.  Hai-dee,  38  G^ 


620  RETKOACTIVE  STATUTES. 

executory  judgment  against  a  city  to  file  a  certified  copy 
thereof  with  the  controller,  preliminary  to  obtaining  a  warrant 
on  the  treasury  in  payment,  does  not  impair  the  obligation, 
and  is  constitutional.' 

§  477.  A  statute,  passed  after  the  making  of  a  mortgage, 
which  declared  that  the  equitable  estate  of  the  mortgagor 
should  not  be  extinguished  for  twelve  months  after  a  sale 
under  a  decree  in  chancery,  and  which  prevented  any  sale 
unless  two-thirds  of  the  amount  at  which  the  property  had 
been  valued  by  appraisers  should  be  bid  therefor,  impaired  the 
obligation  of  the  contract.^    Taney,  C.  J.,  says :  "  Undoubtedly 
a  state  may  regulate  at  pleasure  the  modes  of  proceeding  in 
its  courts  in  relation  to  past  contracts  as  well  as  future.     It 
may,  for  example,  shorten  the  period  of  time  within  which 
claims  shall  be  barred  by  the  statute  of  limitations.   It  may,  if 
it  thinks  proper,  direct  that  the  necessary  implements  of  agri- 
culture, or  the  tools  of  a  mechanic,  or  articles  of  necessity  in 
household  furniture,  shall,  like  wearing  apparel,  not  be  liable 
to  execution  on  judgments.     Eegulations  of  this  description 
have  always  been  considered,  in  every  civilized  community,  as 
properly  belonging  to  the  remedy,  to  be  exercised  or  not  by 
every  sovereignty  according  to  its  own  views  of  policy  and 
humanity.     It  must  reside  in  every  state  to  enable  it  to  secure 
its  citizens  from  unjust  and  harassing  litigation,  and  to  protect 
them  in  those  pursuits  which  are  necessary  to  the  existence 
and  well-being  of  every  community.     And  although  a  new 
remedy  may  be  deemed  less  convenient  than  an  old  one,  and 
may  in  some  degree  render  the  recovery  of  debts  more  tardy 
and  difficult,  yet  it  will  not  follow  that  the  law  is  unconstitu- 
tional.    Whatever  belongs  merely  to  the  remedy  may  be 

350 ;  stocking  v.  Hunt,  3  Denio,  274 ;  v.  Loyal,  38  Ga.  531 ;  Hardeman  v. 
WolfkeU  V.  Mason,  16  Abb.  Pr.  221;  Downer,  39  id.  425;  Sneiderv.  Heidel- 
SulUvan  v.  Brewster,  1  E.  D.  Smith,  berger,  45  Ala.  126 ;  MauU  v.  Vaughn, 
681;  MiUer  v.  Moore,  id.  739;  Cole-  id.  134;  Farley  v.  Dowe,  id.  334; 
man  v.  BaUandi,  23  Minn.  144;  Rockwell  v.  Hubbell's  Adm'r,  2  Doug. 
Quackenbush  v.  Danks,  1  Denio,  128 ;  (Midi.)  197 ;  Sprecher  v.  Wakeley,  11 
Danks  v.  Quacken})ush,  3  Denio,  594 ;  Wis.  432 ;  In  re  Kennedy,  2  S.  C. 
1  N.  Y.  129 ;  Cusic  v.  Douglas,  3  216 ;  Breitung  v.  Lindauer,  37  Mich- 
Kan.   123 ;  Morse  v.  Goold,  11  N.  Y.  217. 

281 ;  Hill  V.  Kessler,  63  N.  C.  437 ;  Mar-  i  Louisiana    v.   New    Orleans,   102 

tin  V.  Hughes,  67  N.  C.  293;  Story  v.  U.  S.  2(3. 

Furman,  35  N.  Y.  214,  223-4 ;  Maxey  2  Bronson  v.  Kinzie,  1  How.  311. 


ketkoactivp:  statutes.  C21 

altered  according  to  the  will  of  the  state,  provided  the  altera- 
tion does  not  impair  the  obligation  of  the  contract.  But  if 
that  effect  is  produced,  it  is  immaterial  whether  it  is  done  by  act- 
ing on  the  remedy,  or  directly  on  the  contract  itself.  In  either 
€ase  it  is  prohibited  by  the  constitution."  ^  In  McCracken  v. 
Hay  ward  ^  it  was  held  that  a  law^  which  provided  that  a  sale 
should  not  be  made  of  property  levied  on  under  an  execution 
unless  it  would  bring  tAvo-thirds  of  its  appraised  value  was 
unconstitutional  and  void  for  like  reason.  Baldwin,  J.,  de- 
livered the  opinion  of  the  court,  in  the  course  of  which  he 
said :  "  In  placing  the  obligation  of  contracts  under  the  pro- 
tection of  the  constitution,  its  framers  looked  to  the  essen- 
tials of  the  contract  more  than  to  the  forms  and  modes  of 
proceeding  by  which  it  was  to  be  carried  into  execution ;  an- 
nulling all  state  legislation  which  impaired  the  obligation,  it 
w^as  left  to  the  states  to  prescribe  and  shape  the  remedv  to 
enforce  it.  The  obligation  of  a  contract  consists  in  its  bind- 
ing force  on  the  party  who  makes  it.  This  depends  on  the 
laws  in  existence  when  it  is  made;  these  are  necessarily 
referred  to  in  all  contracts,  and  forming  a  part  of  them  as  the 
measure  of  the  obligation  to  perform  them  by  the  one  party, 
and  the  right  acquired  by  the  other.  There  can  be  no  other 
standard  by  which  to  ascertain  the  extent  of  either  than  that 
which  the  terms  of  the  contract  indicate  according  to  their 
settled  legal  meaning ;  w^hen  it  becomes  consummated,  the  law 
defines  the  duty  and  the  right ;  compels  one  party  to  perform 
the  thing  contracted  for,  and  gives  the  other  a  right  to  en- 
force the  performance  by  the  remedies  then  in  force.  If  any 
subsequent  law  affect  to  diminish  the  duty,  or  to  impair  the 
right,  it  necessarily  bears  on  the  obligation  of  the  contract  in 
favor  of  one  party,  to  the  injury  of  the  other;  hence  any  law. 
Avhich  in  its  operation  amounts  to  a  denial  or  obstruction 
of  the  rights  accruing  by  a  contract,  though  professing  to  act 
only  on  the  remedy,  is  directly  obnoxious  to  the  prohibition  of 
the  constitution."  In  Edwards  v.  Kearzey  ^  it  was  held  that 
an  exemption  of  a  homestead  to  the  value  of  $1,000,  inserted 
in  a  new  constitution  adopted  after  a  debt  was  contracted,  im- 
paired the  obligation  of  the  contract.*     Mr.  Justice  Swayne 

1  Bronson  v.  Kinzie,  1  How.  311.  3  96  U.  S.  595. 

2  2  How.  608.  *  Giuin    v.   Barry,    15  Wall    610 ; 


622  KETEOACTIVE  STATUTES. 

delivered  the  opinion  of  the  court,  and,  alludirig  to  what  had 
been  said  by  the  chief  justice  in  Bronson  v.  Kinzie  relative  to 
the  power  of  the  states  to  enact  exemption  laws,  said :  "  The 
learned  chief  justice  seems  to  have  had  in  his  mind  the  maxim 
de  minimis,  etc.  Upon  no  other  ground  can  any  exemption  be 
justified.  Folic}^  and  humanity  are  dangerous  guides  in  the  dis- 
cussion of  a  legal  proposition.^  He  who  follows  them  far  is 
apt  to  bring  back  the  means  of  error  and  delusion.  The  pro- 
hibition contains  no  qualification,  and  we  have  no  judicial  au- 
thority to  interpolate  any.  Our  duty  is  simply  to  execute  it." 
He  concludes  with  this  declaration :  "  The  remedy  subsisting 
in  a  state  when  and  where  a  contract  is  made  and  is  to  be  per- 
formed is  a  part  of  its  obligation,  and  any  subsequent  law  of 
the  state  which  so  affects  that  remedy  as  substantially  to  im- 
pah*  and  lessen  the  value  of  the  contract  is  forbidden  by  the 
constitution  and  is  therefore  void." 

§  4:78.  Legislation  cannot  be  permitted  to  affect  the  con- 
struction of  existing  contracts.  It  is  also  held  that  the  par- 
ties are  entitled  to  a  remedy  as  efficacious  as  that  afforded  when 
the  contract  was  made.  They  are  entitled  to  have  the  iden- 
tical compact  enforced,  but  not  by  the  precise  modes  of  pro- 
cedure in  force  at  its  execution ;  only  an  equivalent  remedy. 
There  is  some  diversity  of  opinion  as  to  the  degree  of  change 
or  departure  from  an  exact  equivalence  there  may  be  with- 
out conflicting  with  the  constitution.  What  the  suitor  has  a 
right  to  claim  is  the  use  of  such  remedy  as  may  be  adequate 
to  his  demand ;  not  that  he  shall  be  permitted  to  enforce  that 
demand  in  any  special  form  or  by  any  specific  process.^  No 
attempt  has  been  made  to  fix  definitel}^  the  line  between  alter- 
ations of  the  remedy  which  are  to  be  deemed  legitimate,  and 
those  which,  under  the  form  of  modifying  the  remedy,  impair 
substantial  rights ;  every  case  must  be  determined  on  its  own 
circumstances.*  Statutes  taking  away  all  remedy  on  existing 
contracts  would  be  manifestly  void.*     Where  the  changes  in- 

Homestead     Cases,    22    Gratt    2G6;  *  CaU  v.  Hagger,  8  Mass.  430 ;  State 

Lessley  v.  Phipps,  49  INIiss.  790.  v.  Bank,  1  S.  C.  63 ;  Osborn  v.  Nich- 

iSee  Von  Hoffman  v.  Quincy,  4  olson,  13  Wall.  663;  West  v.  San- 
Wall.  553.  som,  44  Ga.  295 ;    Johnson  v.  Bond, 

2  Tennessee  v.  Sneed,  96  U.  S.  73,  74.  Hempst.  533 ;  Rison  v.  FaiT,  24  Ark. 

5  Von  Hoffman  v.  Quincy,  4  WaE  161 ;  McFaiiand  v.   Butler,  8  Minn. 

553.  116 ;  Jackson  v.  Butler,  id.  117. 


KETROA.CTIVE    STATUTES.  623 

troduced  are  intended  and  suited  to  clog,  hamper  and  embar- 
rass the  proceedings  to  enforce  the  right,  so  as  to  destroy 
it,  the  statute  is  not  a  regukition  of  the  remedy  but  impairs 
the  obHgation  of  the  contract.'  The  remedy  for  the  enforce- 
ment of  a  contract  to  which  a  party  is  entitled  under  state 
statutes  in  force  when  the  contract  was  made  cannot  be  sub- 
sequently taken  away  by  decisions  of  the  state  courts  giving 
those  statutes  an  erroneous  construction,  any  more  than  by 
subsequent  legislation.-  It  has  been  held  that  the  remedy  is 
within  the  discretion  of  the  states,  and  that  a  stay  of  execu- 
tion for  a  reasonable  time  is  not  obnoxious  to  constitutional 
objection.^  An  act  passed  in  Wisconsin  in  May,  1862,  exempt- 
ing from  civil  process  all  persons  who  had  or  might  volunteer 
or  enroll  themselves  as  members  of  any  military  company, 
mustered  into  the  service  of  the  United  States  or  of  that 
state,  during  their  service,  was  held  to  be  void  as  operating  to 
impair  the  obligation  of  contracts ;  that  it  was  within  the  rec- 
ognized power  of  the  states  to  change  or  modify  the  laws  gov- 
erning proceedings  in  courts  of  justice  in  regard  to  past  as 
well  as  future  contracts.  That  power  was  held  to  be  unre- 
stricted, except  that  a  substantial  remedy  must  be  afforded 
according  to  the  course  of  justice  as  it  existed  at  the  time 
the  contract  was  made.*  A  Pennsylvania  act  of  like  nature 
passed  in  1861,  and  construed  to  mean  a  stay  during  the  war 
or  for  three  years  and  thirty  days,  unless  it  should  sooner  termi- 
nate, was  sustained.  "  In  such  cases,"  says  Woodward,  J.,  "  the 
rule  is  that  the  remedy  becomes  part  of  the  obhgation  of  the 
contract,  and  any  subsequent  statute  which  affects  the  rem- 
edy impairs  the  obligation,  and  is  unconstitutional.  Bronson 
v.  Kinzie^  and  Billinger  v.  Evans  ^  are  illustrations  of  this 
rule.  The  tune  and  manner  in  which  stay  laws  shaU  operate 
are  properly  legislative  questions,  and  will  generally  depend, 
said  Judge  Baldwin  in  Jackson  v.  Lamphire,"  "  on  the  sound 
discretion  of  the  legislature,  according  to  the  nature  of  the 
titles,  the  situation  of  the  country,  and  the  emergency  which 
leads  to  the  enactment."  ^    The  learned  judge  added :  '•  It  is 

1  Oatman  v.  Bond,  15  Wis.  20.  5 1  How.  323. 

2  Butz  V.  Muscatine,  8  Wall.  575.  <>  4  Wright,  327. 
s  Chadwick  v.  Moore,  8  W.  &  S.  49.        '  3  Pet  280. 

^Hasbrouck  v.  Sliipman,  16  Wis.        ^Breitenbach  v.  Bush,  44  Pa.  St 
30&  313. 


624  EETKOACTIVE  STATUTES. 

impossible  to  separate  this  question  of  reasonableness  from 
the  actual  circumstances  in  which  the  country  found  itseK  at 
the  date  of  the  war.  .  .  .  ISTow,  if  a  stay  of  execution  for 
three  years  would  not  be  tolerated  in  ordinary  times,  did  not 
these  circumstances  [then  historically  known]  constitute  an 
emergency  that  justified  the  pushing  of  legislation  to  the  ex- 
tremest  limits  of  the  constitution?  ...  In  view  of  the 
extraordinary  circumstances  of  the  case  we  cannot  pronounce 
it  um'easonable.  We  see  in  it  no  wanton  or  careless  disre- 
gard of  the  obligation  of  contracts.  .  .  .  Another  circum- 
stance which  bears  on  the  reasonableness  of  the  enactment  is 
the  provision  Avhich  suspends  all  statutes  of  limitation  in 
favor  of  the  soldier  during  the  time  he  is  exempted  from  pro- 
cess. The  provisions  were  reciprocal  and  both  were  reason- 
able." ^  Where  an  indeJinite  stay  was  provided  for  on  the 
consent  of  two-tliirds  of  the  creditors,  subject  to  no  other  than 
their  discretion,  the  obligation  of  the  contracts  held  by  the 
non-consenting  minority  was  impaired.^ 

A  statute  directing  that  execution  upon  any  judgment  there- 
after obtained  should  not  issue  until  two  years  after  the  rendi- 
tion of  the  judgment,  unless  the  plaintiff  should  indorse  upon  the 
execution  that  satisfaction  may  be  received  in  notes  of  particu- 
lar banks,  was  held  unconstitutional.  Such  a  law  attempts  to 
impair  the  obligation.^    An  ordinance,  ostensibly  to  change  the 

1  See  Coxe's  Ex'r  v.  Martin,  44  Pa,  an  equivalent  in  money,  and  a  subse- 
St  332.  quent  law  says  the  equivalent  shall 

2  Bunn  V.  Gorgas,  41  Pa.  St.  441.  not  be  in  money,  such  act  would  im- 

3  Townsend  v.  Townsend,  Peck,  1 ;  pair  the  obligation  of  the  contract 
S.  C.  14  Am.  Dec.  722.  "  The  con-  If  the  law  in  being  at  the  date  of  the 
tract,"  says  Haywood,  J.,  "  is  made  by  contract  gives  immediate  execution 
the  parties,  and,  if  sanctioned  by  law,  on  the  rendition  of  the  judgment,  a 
it  promises  to  enforce  performance  subsequent  act  declaring  that  the  ex- 
should  the  party  decliae  performance  edition  shall  not  issue  for  two  years 
hunself.  The  law  is  the  source  of  would  lessen  or  impair  the  contract 
the  obligation,  and  the  extent  of  the  equally  as  much  in  principle  as  if 
obligation  is  defined  by  the  law  in  use  it  suspended  execution  forever ;  in 
at  the  time  the  contract  is  made.  If  which  case  the  legal  obligation  of  the 
this  law  du-ect  a  specific  execution,  conti'act  would  be  whoUy  extin- 
and  a  subsequent  act  declares  that  guished.  The  legislature  may  alter 
there  shall  not  be  a  specific  executio,"",  remedies,  but  they  must  not,  so  far  as 
the  obligation  of  the  contract  is  less-  regards  antecedent  contracts,  be  ren- 
ened  and  impaired  If  the  law  in  dei<^dless  efficacious  or  more  dilatory 
being  at  the  date  of  the  contract  gives  than   those  ordained  by  the  law  in 


EETROACnVE    STATUTES. 


025 


jurisdiction  of  the  courts,  provided  that  all  contracts,  without 
regard  to  the  terms  of  payment  made  by  the  parties,  should  be 
payable  in  four  annual  instalments.  This  was  held  unconstitu- 
tional.^ A  law  which  clianges  the  rules  of  evidence  relates  to 
the  remedy  and  is  not  within  the  constitutional  inhibition.'^  A 
law  abolishing  distress  for  rent  has  been  sustained  as  applica- 
ble to  existing  leases.'  The  right  to  imprison  for  debt  is  not 
a  part  of  the  contract.  It  is  regarded  as  penal  rather  than  re- 
medial. The  states  may  abolish  it  whenever  they  think  proper.* 
A  law  which  takes  from  a  mortgagee  a  right  of  possession 
until  after  foreclosure ;  *  a  law  suspending  the  right  to  sue  on 


being  when  the  contract  was  made, 
if  such  alteration  be  the  direct  and 
special  object  of  the  legislature,  appar- 
ent in  an  act  made  for  the  purpose." 
See  Farnsworth  v.  Vance,  2  Cold. 
108 ;  overruled  by  Webster  v.  Rose, 
6  Heisk.  93.  A  IVIissouri  act  extended 
the  time  for  retm-n  of  executions  to 
second  term  after  issue,  and  prohib- 
ited sales  till  within  fifteen  days  of 
the  return  day,  and  from  justices' 
courts  for  twelve  months.  This  was 
held  unconstitutional.  Stevens  v.  An- 
drews, 31  ]\Io.  205.  In  tliis  case  Nap- 
ton,  J.,  said:  "We  do  not  question 
the  power  of  the  legislature  over  rem- 
edies, whether  they  relate  to  past  or 
future  contracts,  provided  the  new 
remedy  does  not  impaii-  the  obUgation 
of  the  contract.  It  is  the  unques- 
tioned power  of  the  legislature  to 
regulate  the  modes  of  proceedings  in 
their  courts,  and  prescribe  the  forms 
of  process,  both  final  and  mesne,  and 
their  manner  and  time  of  execution. 
General  laws  relating  to  the  modes  of 
proceeding,  both  before  and  after 
judgment,  would  hardly  be  called  in 
question,  although  applied  to  past 
contracts,  merely  because  of  some  in- 
cidental effect  favorable  to  the  plaint- 
iff or  defendant  in  the  suit.  .  .  . 
The  act  now  under  considei'ation  is 
not  designed  to  make  any  permanent 
40 


change  in  the  forms  of  proceedings 
heretofore  in  use.  On  the  contrary, 
the  old  system  is  retained ;  and  the 
act,  without  changing  the  rule,  at- 
tempts to  suspend  its  operatioru  It 
recognizes  the  propriety  of  letting  ex- 
ecutions nm  for  six  months  as  the 
permanent  rule,  but  it  suspends  this 
general  regulation  for  two  years  and 
apphes  the  suspension  to  past  con- 
ti'acts."  See  Webster  v.  Rose,  6 
Heisk.  93 ;  Burt  v.  WiUiams,  24  Ark. 
91 ;  Hudspeth  v.  Davis,  41  Ala,  389 ; 
Taylor  v.  Steams,  18  Gratt  244 ;  Cutts 
V.  Hardee,  38  Ga.  350;  Aycock  v. 
Martin,  37  id.  124;  Sequesti'ation 
Cases,  30  Tex.  688 ;  Clark  v.  Mai-tm,  3 
Grant's  Cas.  393;  Johnson  v.  Hig- 
gms,  3  Met.  (Ky.)  566. 

1  Jacobs  v.  Smallwood,  63  N.  C. 
112. 

'-^Neass  v.  Mercer,  15  Barb.  318; 
Howard  v.  Moot,  64  N.  Y.  262. 

^  Van  Rensselaer  v.  Snyder,  9  Barb. 
302 ;  13  N.  Y.  299 ;  Guild  v.  Rogers,  8 
Barb.  502 ;  Conkey  v.  Hart,  14  N.  Y. 
22. 

•*  Von  Hoffman  v.  Quincy,  4  Wall 
552;  Beers  v.  Haughton,  9  Peters, 
359 ;  Ogden  v.  Saunders,  12  Wheat 
230;  Stiu'ges  v.  Crowninshield,  4  id. 
200. 

5  Mundy  v.  Monroe,  1  Mich.  68 ; 
Blackwood  v.  Van  Vleet,  11  id.  252. 


Q2Q  KETROACnVE    STATUTES. 

the  note  or  bond  until  after  foreclosure ;  *  extending  redemp 
tion;2  or  shortening  the  redemption,"  impairs  the  obligation^ 
and  is  within  the  prohibition  under  consideration. 

§  479.  Limitation  laws  relate  to  the  remedy  and  not  di- 
rectly to  the  right.  They  are  not  considered  as  elements  enter- 
ing into  contracts,  for,  it  is  said,  parties  do  not  look  forward  to 
a  breach  of  their  agreements,  but  to  the  performance.*  A  law 
passed  subsequently  to  a  contract,  and  changing  the  period  of 
limitation,  is  not  necessarily  a  law  impairing  its  obhgation.^  And 
ordinarily  courts  disregard  the  limitation  fixed  in  the  place  of  the 
contract  or  tort  and  enforce  only  that  of  the  lexfori.^  Usually 
the  bar  of  a  statute  limiting  transitory  actions  is  said  not  to  ex- 
tinguish the  right,  because  such  actions  may  be  brought  any- 
where, while  the  statute  can  have  no  effect  beyond  the  territory 
of  the  sovereign  that  enacted  it ;  therefore  the  right  remains  to. 
s  ipport  such  action  whenever  the  lex  fori  wiU  permit  it  to 
be  brought.  But  even  under  these  statutes,  if  the  subject- 
matter  of  an  action  and  the  opposing  claimants  of  the  right 
have  continued  within  the  same  jurisdiction  until  the  statutory 
term  has  expired,  the  title  is  transferred  to  him  in  whose  favor 
the  bar  exists,  and  that  title  Avill  be  recognized  and  uxDheld  in. 
the  tribunals  of  other  states  as  well.^ 

§  480.  Tested  rights  inviolable. — Tested  rights  cannot  be 
destroyed,  divested  or  unpaired  by  dhect  legislation.  Then- 
protection  is  one  of  the  primary  purposes  of  government.  They 
are  secured  by  the  bill  of  rights,  and  the  constitutional  limita- 

1  Boice  V.  Boice,  27  Minn.  371.  Drake  v.  Wilkie,  30  Hun,  537 ;  Cal- 

^  Robinson  v.   Howe,  13  Wis.  341 ;  houn  v.  KeUogg,  41  Ga,  231. 

Dikeman  v.  Dikeman,  11  Paige,  484 ;  '  Moore  v.  State,  43  N.  J.  L.  203  \ 

Greenfield  v.   Dorris,  1   Sneed,  550 ;  Newby's  Adm'r  v.  Blakey,  3  H.  &  M. 

January  v.  Januaiy,  7  T.  B.  Mon.  542 ;  57 ;  Brent  v.   Chapman,  5  Cr.  858 ; 

Goenen  v.   Schroeder,   8  Minn.  387.  Shelby    v.     Guy,    11     Wheat     361; 

But  see  Stone  v.  Bassett,  4  Mirm.  298.  Thompson  v    CaldweU,  3  Litt  136 ; 

3  Cargill  V.  Power,  1  Midi.  369.  Story's  Conf.   L.  §  5826;   Huber  v. 

4  Moore  v.  State,  43  N.  J.  L.  203 ;  Sterner,  2  Bmg.  N.  C.  202 ;  Don  v. 
Ogden  v.  Saunders,  12  Wheat  313 ;  Lippmann,  5  CI.  &  Fin.  1 ;  Brown  v. 
Don  V.  Lippmann,  5  CL  &  Fm.  1.  WUcox,   14  S,   &  M.   127 ;  Davis  v. 

5  3  Parsons  on  Cont  557.  Minor,  1  How.  (IMiss.)  183 ;  Woodman 

6  Moore  v.  State,  43  N.  J.  L.  203;  v.  Fulton,  47  Miss.  682;  Spencer  v. 
Gulick  V.  Loder,  13  id.  68 ;  Town-  McBride,  14  Fla.  403.  See  Swickard 
send  V.  Jemison,  9  How.   407 ;  Ed-  v.  Bailey,  3  Kan.  507. 

wards    v.   Kearzey,   96    U.    S.    595; 


RETROACTIVE  STATUTES. 


627 


tions  upon  the  exercise  of  the  sovereign  powers.'  There  is  a 
vested  right  in  property  which  one  owns,  and  it  cannot  be  legis- 
lated away.'  A  vested  right  is  property  as  tangible  things  are 
when  they  spring  from  contract  or  the  principles  of  the  com- 
mon law.^  There  is  a  vested  right  in  an  accrued  cause  of  ac- 
tion ;  <  in  a  defense  to  a  cause  of  action ;  *  even  in  the  statute  of 
limitations  when  the  bar  has  attached,  by  which  an  action  for  a 
debt  is  barred.  That  statute  presumes  evidence  from  length  of 
time  which  cannot  now  be  produced ;  payment  which  cannot 
now  be  proved."  A  person  in  adverse  possession  is  no  longer 
subject  to  action  to  disturb  him ;  the  one  has  a  vested  right  to 
his  defense,  and  the  other  a  title  with  all  its  incidents  and  im- 
plications.'^  And  it  is  then  secure  against  legislative  inter- 
ference.^ 


1  Wilson  V.  WaU,  34  Ala.  288 ;  Dav- 
idson V.  New  Orleans,  96  U.  S.  97 ; 
Baugher  v.  Nelson,  9  GiU,  299 ;  Max- 
well V.  Goetscliius,  40  N.  J.  L.  383 ; 
Collins  V.  East  Tenn.  etc.  R  R.  Co.  9 
Heisk.  841 ;  Dash  v.  Van  Kleeck,  7 
Jolin.  477 ;  Davis  v.  Minor,  1  How. 
(Miss.)  183 ;  Dodge  v.  County  of  Platte, 
16  Hun,  285 ;  Wood  v.  Mayor,  etc.  34 
How.  Pr.  501 ;  State  Bank  v.  Knoop, 
16  How.  369 ;  Dodge  v.  Woolsey,  18 
id,  331 ;  Greenough  v.  Greenough,  11 
Pa.  St  489;  De  ChasteUux  v.  Fair- 
cliUd,  15  Pa.  St  18 ;  Smith  v.  Louis- 
ville, etc.  R.  R  Co.  62  IMiss.  510; 
HaUoran  v.  T.  etc.  R  R  Co.  40  Tex. 
465 ;  Aldridge  v.  Tuscumbia,  etc.  R 
R  Co.  2  St  &  P.  199;  Boatwright 
V.  Faust,  4  McCord,  439 ;  Municipal- 
ity No.  3  V.  Michoud,  6  La.  Ann.  605 ; 
Steele  v.  Steele.  64  Ala.  438;  Coosa 
R  Co.  V.  Barclay,  30  Ala.  120 ;  Dillon 
V.  Dougherty,  2  Grant's  Cas.  99; 
State  V.  Squires,  26  Iowa,  340 ;  Smith 
V.  Van  Gilder,  26  Ark.  527. 

2  Lane  v.  Nelson.  79  Pa.  St  407 ; 
Greenough  v.  Greenough,  11  Pa,  St 
489;  De  Chask'llux  v.  Fairchild,  15 
Pa  St  18;  Norman  v.  HeLst  5  W. 
&  S.  171;  Aldridge  v.  Tuscumbia, 
etc.   R  R  Co.  2  Stew.  &  Port  199 ; 


Thistle  V.  Frostburg  Coal  Co.  10  "Sid. 
129. 

s  Collins  V.  East  Tenn.  etc.  R  R  Co. 
9  Heisk.  841 ;  DiUon  v.  Dougherty,  3 
Grant's  Cas.  99. 

*  Smith  V.  Louisville,  etc.  R  R  Co. 
62  Miss.  510. 

5  Davis  V.  Minor,  1  How.  (Miss.)  183. 

6  Davis  V.  Minor,  supra. 

7  Knox  V.  Cleveland,  13  Wis.  249; 
Moore  v.  Luce,  29  Pa.  St  260 ;  Lef- 
fingwell  V.  WaiTen,  2  Black,  599. 

8  Moore  v.  State,  43  N.  J.  L.  207 ; 
Maxwell  v.  Goetscliius.  40  id.  383. 
A  statute  provided  that  by  partic- 
ular pleading  a  borrower  might  de- 
fend against  a  usurious  loan  to  the 
extent  of  the  usury.  It  was  regarded 
as  remedial,  and  though  imposing 
a  duty  to  pay  the  loan  and  law- 
ful interest  in  accordance  with  tlie 
debtor's  equitable  duty,  and  made 
to  operate  retrospectively  in  deroga- 
tion of  the  statute  in  force  when  the 
loan  was  made  by  which  the  couti'act 
was  unlawful,  it  was  held  not  obnox- 
ious to  the  objection  that  it  took 
away  a  vested  right,  for  it  was  said 
there  could  be  no  vested  right  to  do 
wrong.  Baugher  v.  Nelson,  9  GUI, 
299;  Town  of   Danville  v.   Pace,   25 


628 


RETROACTIVE    STATUTES. 


If  a  contract  when  made  is  a  nullity,  it  cannot  be  validated 
by  an  act  of  the  legislature,  for  that  would  be  to  impose  a 
binding  agreement  where  none  existed.^  A  right  of  redemption, 
once  vested  is  a  property  right  which  can  only  be  taken  by 
due  process  of  law ;  it  cannot  be  abrogated  by  a  legislative 
act.-  A  lien  or  other  right  once  attached  cannot  be  destroyed 
by  repeal  of  the  law  under  which  it  was  derived.^  After  a 
tax  has  been  legally  remitted  it  cannot  be  reimposed.*  When 
a  right  has  been  perfected  by  judgment  the  fruits  of  recovery 
cannot  be  diverted  by  new  legislation,^  nor  subjected  to  new 
hazard  by  reviving  a  new  right  to  appeal,^  or  some  other  mode 
of  review.'^  An  act  cannot  affect  the  construction  of  the  will 
of  a  testator  who  died  before  it  was  passed,^  Eights  of  a  hus- 
band in  the  property  of  the  wife  when  vested  cannot  be  im- 
paired by  subsequent  legislation.^  Treaties  are  the  supreme 
law  of  the  land ;  rights  which  have  vested  under  them  cannot 
be  destroyed  or  affected  by  the  action  of  either  the  legislative 


Gratt  1 ;  Satterlee  v.  Mathewson,  16 
S.  &  R.  191 ;  The  Ironsides,  Lusliing- 
ton,  458. 

1 N.  Y.  etc.  R.  R.  Co.  v.  Van  Horn, 
57  N.  Y.  473. 

2  WUlis  V.  Jelineck,  27  Minn.  18. 

3  Appeal  Tax  Court  v.  Western  R.  R. 
Co.  50  Md.  274 ;  Warren  v.  Jones,  9 
S.  C.  288 ;  Daniels  v.  Moses,  12  S.  C. 
130 ;  Walton  v.  Dickerson,  4  Rich.  L. 
568.  The  repeal  of  a  general  corpo- 
ration law  by  a  statute  substantially 
re-enacting  and  extending  its  pro- 
visions does  not  affect  the  existence 
of  corporations  organized  under  it. 
United  Hebrew  B.  Assoc,  v.  Ben- 
shimol,  130  Mass.  325. 

4  INIunicipality  No.  3  v.  Michoud,  6 
La.  Ann.  605. 

8  Commonwealth  v.  Welch,  2  Dana, 
330. 

s  Hooker  v.  Hooker,  10  Sm  &  M. 
599 ;  HaUoran  v.  T.  &  N.  etc.  R  R. 
Co.  40  Tex.  465 ;  Burch  v.  Newbury, 
10  N.  Y.  374. 

7  Stewart  v.  Davidson,  10  Sm.  &  M. 
351 ;  Johnson  v.  Johnson,  52  Md.  668. 


8Boatwi-ight  v.  Faust,  4  McCord, 
439.  Statutes  prescribing  the  requi- 
sites to  be  observed  in  making  a  will 
may  be  made  to  operate  upon  wills 
already  made  where  the  testator  dies 
afterwards.  Sutton  v.  Chenault,  18 
Ga.  1;  Wynne  v.  Wynne,  2  Swan, 
405.  So  its  provisions  may  be  con- 
trolled and  their  vahdity  affected  by 
legislation  intermediate  the  execution 
of  the  will  and  the  death  of  the  tes- 
tator. Magruder  v.  Carroll,  4  Md. 
335.  See  Blackman  v.  Gordon,  3 
Ricli.  Eq.  43.  Congress  has  power  to 
authorize  by  special  act  the  extension 
of  a  patent,  notwithstanding  the  fact 
that  the  original  patent  had  pre- 
viously expired  and  the  invention  has 
been  intrdduced  to  pubhc  use.  A 
special  act  of  congress  authorizing 
the  extension  of  a  particular  patent 
should  be  read  and  construed  in  con- 
nection with  the  general  acts  on  the 
subject  of  patents.  Jordan  v.  Dob- 
son,  2  Abb.  (U.  S.)  398. 

9  Westervelt  v.  Gregg,  12  N.  Y.  203 ; 
Bouknight  v.  Epting,  11  S.  C.  71. 


EETROACTTVE    STATUTES.  629' 

or  the  executive  department  of  tlie  government,  nor  by  the 
rules  of  practice  adopted  by  the  officers  of  the  latter  depart- 
ment ;  nor  are  the  courts  in  determining  those  rights  to  be  con- 
trolled by  the  action  or  rules  of  practice  of  the  other  depart- 
ments.' It  is  not  within  the  power  of  the  legislature  to  create 
a  legal  liability  out  of  a  past  transaction,  for  which  none  arose 
by  the  law  as  it  stood  at  the  time  of  its  occurrence.^ 

§  481.  Imperfect  and  inchoate  rights  are  subject  to  future 
legislation  and  may  be  extinguished  while  in  that  condition ; ' 
but  such  statutes,  and  others  which  involve  expense  or  inter- 
fere with  the  existing  course  of  business,  will  not  be  con- 
strued to  affect  such  rights  or  existing  cases,  or  impose  new 
d  uties  or  disabihties  in  respect  of  past  transactions,  unless  the 
intention  to  do  so  is  clearly  expressed  —  even  remedial  stat- 
utes.* 

§  482.  Remedial  statutes  may  apply  to  past  transactions 
and  pending  cases.*  —  Where  statutory  relief  is  prescribed  for 
a  cause  w^hich  is  continuous  in  its  nature,  as  a  statute  of  lim- 
itations, or  desertion  for  a  certain  time  as  ground  for  divorce, 
if  the  cause  continues  after  the  statute  goes  into  effect,  the 
future  continuance  of  the  cause  may  be  supplemented  by  the 
time  it  w^as  continuous  immediately  before  the  act  w^as  passed 
to  constitute  the  statutory  period.^    No  person  can  claim  a 

1  Wilson  V.  Wall,  34  Ala,  288.  See  Red  River,  29  La,  Ann.  608 ;  Kimbray 
Hauensteine  v.  Lynham,  28  Gratt.  62,  v.  Draper,  L.  R.  3  Q.  B.  160 ;  Wright  v. 

2  Steele  v.  Steele,  64  Ala.  438 ;  Coosa  Hale,  6  H.  &  N.  227 ;  Singer  v.  Has- 
R.  Co.  V.  Barclay,  30  id.  120 ;  Frasier  son,  50  L.  T.  326 ;  Excelsior  Manuf'g 
V.  Town  of  Tompkins,  80  Hun,  168 ;  Co.  v.  Keyser,  62  Miss.  155 ;  Garrison 
N.  Y.  etc.  R.  R.  Co.  v.  Van  Horn,  57  v.  Cheeney,  1  Wash.  T'y,  489 ;  Garden- 
N.  Y.  473 ;  Sutherland  v.  De  Leon,  1  hire  v,  McCombs,  1  Sneed,  83 ;  Johnson 
Tex.  250.  V.  Koockogey,  23  Ga.  183 ;  Lockett  v. 

3  Cage  V.  Hogg,  1  Humi)h.  48 ;  Tivey  Usry,  28  id.  345 ;  Eskridge  v.  Ditmars, 
V.  People,  8  Mich.  128.  51  Ala,  245 ;   Sumner  v,   IVIiller,   64 

*  State  V.   Bradford,   36    Ga.   422 ;  N.  C.  688 ;  BaUey  v.  R.  R  Co.  4  Harr. 

Bond  V.  Munro,  28  id.  597 ;  The  Iron-  389 ;  Berry  v.  Clary,  77  Me.  482 ;  Costa 

sides.  Lush.  458 ;  Allhusen  v.  Brook-  Rica  v.  Erlanger,  L.  R.  3  Ch.  Div.  69  ; 

ing,  L.  R.  26  Ch.  Div.  564;   Evans  v.  Duauesburgh  v.  Jenkins,  57  N.  Y.  191. 

Williams,    2    Dre^v^y    &    Sm.   324 ;  t*  McCraney  v.  McCraney,  5  Iowa, 

Marsh  v.  Higgins,  9  C.  B.  551 ;  AVaugh  232 ;  Benkert  v.  Benkert,  32  Cal.  467 ; 

V.   Middleton,  8  Ex.  352 ;   Green  v.  Tliornburg  v.  Thomburg,  18  W.  Va. 

Anderson,  39  Miss.  359.  522 ;  Spencer  v.  McBride,  14  Fla.  403 ; 

5  Ludeling  v.  His  Creditors,  4  Mar-  Ross  v.  Duval,  13  Pet   45 ;  Hare  v, 

tin  (N,  S.),  603 ;  Carnes  v.  Parisli  of  Hare,  10  Tex.  355 ;  Greenlaw  v.  Green- 


630 


EETROACTIVE   STATUTES. 


\  ested  right  in  any  particular  mode  of  procedure  for  the  en- 
forcement or  defense  of  his  rights.^  Where  a  new  statute 
deals  with  procedure  only,  jprima  facie  it  appUes  to  aU  ac- 
tions —  those  which  have  accrued  or  are  pending,  and  future 
actions.'  If  before  final  decision  a  new  law  as  to  procedure 
is  enacted  and  goes  into  effect,  it  must  from  that  time  govern, 
and  regulate  the  proceedings.'  But  the  steps  already  taken, 
the  status  of  the  case  as  to  the  court  in  which  it  was  com- 
menced, the  pleadings  put  in,  and  all  things  done  under  the 
late  law,  will  stand,  unless  an  intention  to  the  contrary  is 
plainly  manifested ;  and  pending  cases  are  only  affected  by 
general  words  as  to  future  proceedings  from  the  point  reached 
when  the  new  law  intervened.*  A  remedy  may  be  provided 
for  existing  rights,  and  new  remedies  added  to  or  substituted 
for  those  which  exist.*  Every  case  must  to  considerable  ex- 
tent depend  on  its  own  circumstances.  General  words  in 
remedial  statutes  may  be  applied  to  past  transactions  and 


law,  12  N.  H.  200 ;  Clark  v.  Clark,  10 
id.  391 ;  Crossman  v.  Crossman,  33 
Ala.  486 ;  Bailey  v.  BaUey,  21  Gratt 
43. 

lid. 

2Chaffe  V.  Aaron,  62  Miss.  29; 
Wright  V.  Hale,  6  H.  &  N.  227 ;  Ed- 
monds V.  Lawley,  6  M.  &  W.  285 ; 
Kimbray  v.  Draper,  L.  R.  3  Q.  B.  160 ; 
Lawrence  E.  R.  Co.  v.  Mahoning  Co. 
35  Ohio  St.  1 ;  Matter  of  Beams,  17 
How.  Pr.  459 ;  Sampeyreac  v.  United 
States,  7  Pet.  222 ;  Dobbins  v.  Bank, 
112  UL  553 ;  People  v.  Tibbets,  4  Cow. 
384 ;  People  v.  Supervisors,  63  Barb. 
83 ;  Lane  v.  Nelson,  79  Pa.  St.  407 ; 
Gardner  v.  Lucas,  L.  R.  3  App.  Cas. 
582 ;  People  v.  Peacock,  98  lU.  172 ; 
Rockwell  V.  Hubbell,  2  Doug.  (Mich.) 
197 ;  Henscliall  v.  Schmidtz,  50  Mo. 
454 ;  Jacqums  v.  Clark,  9  Cusk  279 
Blair  v,  Cary,  9  Wis.  543 ;  Common- 
wealth V.  Bradley,  16  Gray,  241 
Walston  V.  Commonwealth,  16  B. 
Mon.  15;  McNamara  v.  Minn,  etc, 
R.  R.  Co.  12  Mum.  388;  Rivers  v, 
Cole,  38  Iowa.  677, 

3  Ludeling  v.  His  Creditors,  4  Mar 


tin  (N.  S.),  603 ;  Scott  v.  Duke,  3  La, 
Ann.  253 ;  Commercial  Bank  v.  Mark- 
ham,  id.  698 ;  Featherstonh  v.  Comp- 
ton,  8  id.  285 ;  State  v.  Brown,  30  id. 
78 ;  Tennant  v.  Brookover,  12  W.  Va. 
337. 

4  Culver  V.  Woodruff  Co.  5  Dill.  392 ; 
Ewing's  Case,  5  Gratt  701 ;  Ti'ist  v. 
Cabenas,  18  Abb.  Pr.  143 ;  Womack  v. 
Womack,  17  Tex.  1 ;  Litch  v.  Brother- 
son,  25  How.  Pr.  416 ;  Tennant  v. 
Brookover,  supra;  Newsom  v.  Green- 
wood, 4  Oregon,  119 ;  State  v.  Solo- 
mons, 3  HiU  (S.  C),  96;  Bates  v. 
Steams,  23  Wend.  482;  Bedford  v. 
Shilhng,  4  S.  &  R.  401;  Butler 
V.  Palmer,  1  Hill,  324;  WUhams  v. 
Smith,  4  H.  &  N.  559;  Palmer  v. 
Conly,  4  Denio,  374;  Satterlee  v. 
Matthewson,  2  Pet.  380. 

5  Anonymous,  2  Stew.  228 ;   Com- 
monwealth V.   Hall,  97    Mass.  570 
Sutherland  v.  De  Leon,  1  Tex,  250 
Davis  V.  Branch  Bank,  12  Ala.  463 
Coosa  R.   Co.    V.    Barclay,  30   Ala, 
120;  City  v.  R.  R.  Co.  35  La.  Ann. 
679 ;  Buckley,  Ex  parte,  53  Ala.  43 ; 
Society,  etc.  v.  Wheeler,  2  GaR  139. 


EETEOACTIVE  STATUTES. 


C31 


pending  cases,  according  to  all  indications  of  legislative  intent, 
and  this  may  be  greatly  influenced  by  considerations  of  con- 
venience, reasonableness  and  justice.^ 

§  483.  Curative  statutes.—  The  legislature  has  power  to  pass 
healing  acts  which  do  not  impair  the  obligation  of  contracts 
nor  interfere  with  vested  rights.^  They  are  remedial  by  cur- 
ing defects,  and  adding  to  the  means  of  enforcing  existing 
•obligations.'  The  rule  in  regard  to  curative  statutes  is  that  if 
the  thing  omitted  or  failed  to  be  done,  and  which  constitutes 
the  defect  sought  to  be  removed  or  made  harmless,  is  some- 
.thing  which  the  legislature  might  have  dispensed  with  by  a 
previous  statute,  it  may  do  so  by  a  subsequent  one.  If  the 
irregularity  consists  in  doing  some  act,  or  doing  it  in  the  mode 
which  the  legislature  might  have  made  immaterial  by  a  prior 
law,  it  may  do  so  by  a  subsequent  one.*  On  this  principle  the 
legislature  may  validate  contracts  made  ultra  vires  by  munici- 
pal corporations.^    It  may  thus  ratify  a  contract  of  a  municipal 


1  TUton  V.  Swift,  40  Iowa,  78 ;  MU- 
ler  V.  Graham,  17  Ohio  St  1 ;  Riggins 
V.  State,  4  Kan.  173 ;  State  v.  Smith, 
58  Comi.  397;  Mabi-y  v.  Baxter,  11 
Heisk.  682 ;  Mann  v.  McAtee,  37  CaL 
11 ;  Chaney  v.  State.  31  Ala.  343 ;  Mer- 
win  V.  BaUard,  66  N.  C.  398 ;  Sunco 
V.  State,  8  Tex.  App.  406 ;  Bradford  v. 
Bai'clay,  43  Ala.  375 ;  Duanesbm-gh  v. 
Jenkins,  57  N.  Y.  191. 

2  Green  v.  Abraham,  43  Ai'k.  420. 

3  Jarvis  v.  Jarvis,  3  Edw.  Ch.  463 ; 
Satterlee  v.  Matthewson,  2  Pet  38a 

^  Green  v.  Abraham,  s^ipra;  State  v. 
Squires,  26  Iowa,  340 ;  Watson  v.  Mer- 
cer,   8  Pet   88;   Cliesnut  v.    Shane, 

16  Oliio,   599 ;  Newman  v.  Samuels, 

17  Iowa,  518;   Journeay  v,   Gibson, 
56   Pa.  St  57;  Shonk  v.  Brown,   61 
id.  327 ;  Dulany  v.  Tilgliman,  6  G.  & 
J.  461 ;  Dentzel  v.  Waldie,  30  Cal.  138 
Johnson,  v.  Richardson,  44  Ark,  365 
Bamet  v.    Barnet    15  S.  &  R    73 
Tate  V.  Stool tzfoos,  16  id.  35 ;  Jackson 
V.  Gilchrist,  15  Jolm.  89 ;  Raverty  v. 
Fridge,   3  INIcLean,  330 ;  Gosliorn  v. 
PurceU,    11  Ohio  St  641;    Davis  v. 


State  Bank,  7  Ind.  316 ;  Tliornton  v. 
McGrath,  1  Duv.  349 ;  State  v.  Town 
of  Union,  33  N.  J.  L.  350 ;  Jackson- 
ville V.  Basnett,  30  Fla,  525 ;  Re  Van 
Antwerp,  1  T.  «&  0.  433 ;  56  N.  Y.  261 ; 
Bass  V.  Mayor,  etc.  30  Ga.  845 ;  Honey 
V.  aark,  37  Tex.  686 ;  Montgomery  v. 
Hobson,  Meigs,  437;  Constantine  v. 
Van  Winkle,  6  HiU,  177;  Van 
Winkle  v.  Constantine,  10  N.  Y. 
422 ;  Hardenbm-gh  v.  Lakin,  47  N.  Y. 
109 ;  Davis  v.  Van  Arsdale,  59  Miss. 
367 ;  Jackson  v,  Dillon,  2  Overt  261 ; 
Matthewson  v.  Spencer,  3  Sneed,  513 ; 
O'Brian  v.  County  Commissioners, 
51  Md.  15 ;  Washington  v.  Washing- 
ton, 69  Ala  281 ;  Vaughan  v.  Swayzie, 
56  Miss.  704 ;  People  v.  Supervisors, 
20  Midi.  95 ;  People  v.  I\Iitchell,  35 
N.  Y.  551 ;  People  v,  McDonald,  69  id. 
362 ;  Duanesburgh  v.  Jenkins,  57  N.  Y. 
191 ;  Morris  v.  State,  62  Tex.  728. 

*  O'Brian  v.  County  Commission- 
ers, 51  IMd.  15 ;  Bass  v.  Mayor,  etc.  30 
Ga,  845;  Single  v.  Supervisor,  38 
Wis.  303 ;  Brown  v.  Mayor,  etc.  63 
N.  Y.  239. 


632  RETKOACTIVE  STATUTES. 

corporation  for  a  public  purpose.  Municipal  corporations  are 
agencies  of  the  state  through  which  the  sovereign  power  acts  in 
matters  of  social  concern.  It  may  confer  upon  them,  subject  to 
such  constitutional  restraints  as  exist,  power  to  enter  into  con- 
tracts, and  may  annex  such  limitations  and  conditions  to  its 
exercise  as,  in  its  discretion,  it  deems  proper  for  the  protection 
of  the  pubhc  interests.  The  right  to  limit  involves  the  power 
to  dispense  with  limitations ;  and  in  such  case  as  the  legislature 
could  have  authorized  a  contract  without  previous  advertise- 
ment, or  competitive  bidding,  it  may  affirm  a  contract  made, 
although  made  originally  without  authority  of  law.^  The  leg- 
islature may  establish  contracts  and  deeds  defectively  exe- 
cuted, acknowledged  or  recorded,-  including  those  of  married 
women;'  marriages  may  be  validated  and  offspring  legiti- 
mated ;  *  also  defective  sales  of  property ,5  defective  assessments 
of  taxes,^  and  municipal  ordinances  irregularly  adopted.'' 

§  484.  The  important  question  on  such  statutes  is,  would  the 
acts  done  be  effectual  for  the  purpose  intended,  if  a  law,  made 
prior  to  those  acts,  had  directed  them  as  they  were  done  ^ 
whether  the  statute  alone  made  them  essential  for  that  pur- 
pose. Acts  which  are  jurisdictional  and  could  not  be  antece- 
dently dispensed  with  by  statute  cannot  be  made  immaterial  by 
subsequent  legislation.^  Eights  resting  upon  such  curable  de- 
fects alone  cannot  be  deemed  meritorious  and  are  not  entitled 
to  the  protection  accorded  to  vested  rights.     Where  they  are- 

1  Id. ;  In  re  Van  Antwerp,  56  N.  Y.  Washington  v.  Washington,  69  Ala. 
261.  281. 

2  Jackson  v.  Dillon,  2  Overt.  261 ;        5  Davis  v.  State  Bank,  7  Ind.   316 ; 
Montgomeiy  v.  Hobson,  Meigs,  437 ;  Thornton  v.   McGrath,  1  Duv.    349 ; 
Jackson  v.   Gilchrist,   15  John.   89 ;  Power  v.  Penny,  59  Miss.  5. 
Hardenburgh  v.  Lakin,  47  N.  Y.  109 ;        «  Davis  v.  Van  Arsdale,  59  Miss.  367 
Atwell  V.  Grant,  11  Md.  101 ;  Cutler  People  v.  McDonald,  69  N.  Y.  262 
V.  Supervisors,  56  Miss.  115 ;  Hughes  Jacksonville  v.  Basnett,  20  Fla.  525 
V.  Cannon,  2  Humph.  589.  Cochran     v.   Baker,    60    Miss.    282 1. 

3Constantinev.VanWinkle,6Hill,  Francklyn  v.   Long  Island  City,  32: 

177 ;  Van  Winkle  v.  Constantine,  10  Hun,  451 ;  Vaughan  v.  Swayzie,  56- 

N.  Y.  422 ;  Johnson  v.  Pachardson,  44  Miss.  704. 

Ark.  365 ;  Watson  v.  Mercer,  8  Pet.         '  State  v.  Town  of  Union,  33  N.  J.  L. 

88.     But    see  Alabama  Ins.   Co.   v.  350;  Walpole  v.  EUiott,  18  Ind.  258; 

Boykm,  38  Ala,  510.  Schenley  v.  Commonwealth,  36  Pa.. 

^Honey    v.   Clark,    37    Tex.    6^,6 ;  St.  29 ;  MoitIs  v.  State,  62  Tex.  72a 

8  State  V.  Town  of  Union,  mpra. 


EETEOACTIVE  STATUTES.  C33 

relied  on  as  an  excuse  for  repudiating  contracts,  executory  or 
executed,  they  are  not  within  the  protection  of  the  constitu- 
tion.* If  the  jurisdictional  facts  are  wanting  the  proceeding 
is  a  nullity  and  cannot  be  cured  by  any  subsequent  legislation, 
for  no  prior  legislation  could  make  it  effectual.  Thus,  for 
example,  in  Lane  v.  Kelson : ^  "It  is  settled  by  a  current  of 
authority  that  the  legislature  cannot  by  an  arbitrary  edict  take 
the  property  of  one  man  and  give  it  to  another ;  and  that 
when  it  has  been  attempted  to  be  taken  by  a  judicial  proceed- 
ing, as  a  sheriff's  sale,  which  is  void  for  want  of  jurisdiction,  it 
is  not  in  the  power  of  the  legislature  to  infuse  life  into  that 
which  is  dead." ' 

1  Baugher  v.  Nelson,  9  Gill,  299 ;  S.  171 ;  Greenough  v.  Greenough,  11 
O'Brian  v.  County  Commissioners,  Pa  St  489 ;  De  Chastellvix  v.  Fair- 
61  Md.  15 ;  Thomson  v.  Lee  County,  child,  15  id.  18 ;  Menges  v.  Dentler, 
3  WalL  337 ;  People  v.  Mitchell,  35  33  id.  495 ;  Bagg's  Appeal,  43  id.  512 ; 
N.  Y.  551 ;  Johnson  v.  Richardson,  44  Schafer  v.  Eneu,  54  id.  304 ;  Shonk  v. 
Ark.  365 ;  Green  v.  Alpraham,  43  id.  Brown,  61  id.  320 ;  Richards  v.  Rote, 
420.  68  id.  248 ;  Hegarly's  Appeal,  75  id. 

2  79  Pa.  St  407.  50a 
'  Citing  Newman  v.  Heists  5  W.  & 


INDEX. 


ABATEMENT  — 

of  action,  how  prevented,  by  liberal  cx)nstruction  of  statute  of  limita- 
tions, in  case  of  death  or  marriage  of  party,  §  424 

ABSURDITY  — 

arguments  based  on,  out  of  place  against  plainly  expressed  intention, 

§§  238,  324 
general  words  may  be  restricted  to  avoid,  g§  246,  258,  410. 
hteral  constniction  may  be  departed  from  to  avoid,  g§  323,  324 
and  if  ambiguous  or  imcei-tain,  will  be  avoided  by  construction,  §  324 

ACCESSION  TO  OFFICE  — 

courts  take  judicial  notice  of,  §  298. 

ACTION  — 

plaintiff  should  have  title  at  commencement  of,  §  148. 

reti-ospective  vesting  of  title  presumed  not  intended  to  affect  pending 

action,  §  148. 
statutes  for  limitation  of,  how  construed,  §§  424-426. 
statutes  regulating  procedure  apply  to  pending,  §  482. 

ACTUS  NON  FACIT  REUM,  NISI  MEUS  SIT  REA,  §§  354,  355. 

AFFIDAVIT  — 

when  reqiiired  of  a  paiiy  may  be  made  by  attorney  of  corporation,  §  420. 
statutoiy  direction  to  verify  assessment  roll  by,  dii-ectory,  §  452. 

AFFIRMATIVE  STATUTES  — 
what  are,  §  202. 
their  operation,  §§  202-2C4 
how  form  affects  construction  as  to  being  directory  or  mandatory,  §  447. 

AMBIGUITY  — 

in  pubUc  grants  resolved  in  favor  of  govei-nment,  §§  378-380, 

AMENDATORY  ACTS  — 

constitutional  regulations,  §  131. 
they  are  mandatory,  §  131. 
purpose  of,  §  131. 

make  no  change  in  the  effect  of  amendment,  §  133. 
require  re-enactment  of  amended  section,  §  132. 
even  when  a  subdivision  clause  is  amended,  §  132. 
not  necessary  to  restate  old  act  or  section  amended,  §  132, 
an  erroneous  recital  of  it,  surplusage,  §  132. 
requirement  when  act  revised,  §  132. 


636  INDEX. 

AMENDATORY  ACTS  (continued)  — 

a  section  amended  to  "read  as  follows,"  g§  132,  133,  137. 
repeals  what  is  not  embraced  in  amended  form,  §  133. 
new  matter  tlius  introduced  operates  only  from  the  taking  effect  of 

amendatory  act,  §  133. 
old  matter  re-enacted  is  continued  in  force  without  interruption, 
§§  133,  134, 142. 
operates  prospectively  by  virtue  of  re-enactment,  §  133. 
repeal  of  amendatory  act  repeals  same  matter  in  amended  act, 
§133. 
general  words  of  time  constiaied  disti'ibutively,  §  133. 
how  statute  amended  operates  prospectively,  §  133. 
when  repeal  and  re-enactment  not  simultaneous,  §  134 
constitutional  regvilation  may  apply  to  independent  act  which  is  intended 

to  be  amendatory,  §  135. 
implied  amendments  by  independent  acts,  §  185. 

not  within  the  mischief  intended  to  be  remedied,  §  135. 
nor  is  a  statute  wliich  furnishes  a  rule  of  construction,  §  185. 
nor  one  referred  to  for  procedure,  §  135. 
of  two  constructions  warranted  by  the  words,  that  will  be  adopted 
which  best  harmonizes  with  the  general  tenor  and  spirit  of  amended 
act,  §  833. 

a:mendments— 

admissible  during  process  of  enactment  of  bill,  §  49. 

must  be  germane  to  subject  of  bill,  §  49. 

concurrence  in,  made  by  other  house,  does  not  require  yeas  and  nays, 

§  49. 
construction  of  remedial  statute  for,  of  records  of  courts,  §  419. 

ANiaiALS  — 

right  to  detain  trespassing  till  charges  paid,  etc.,  strictly  construed, 
§398. 

APPEAL  — 

right  of,  to  one  who  thinks  himself  aggrieved,  not  extended  to  default 

judgment,  §  339. 
statutes  prescribing  method  of,  strictly  construed,  §  394 
when  recognizance  required  of  appellant  by  statute,  how  construed  as 

to  corporations,  §  421. 
statutes  hberally  construed  which  give  a  right  of,  §§  440,  443.   \ 
notice  to  give  effect  to  limitations  for,  §  369. 

APPROPRIATION  ACT  — 

provisions  in,  presumed  to  have  temporary  effect  like  the  act  itself, 

§218. 

ARBITRATION  — 

statutes  providing  for  and  regulating,  liberally  construed,  §§  401,  439.^ 

ASSESSMENT  — 

affidavit  to  verify,  not  imperative,  §  453. 


INDEX.  637 

ASSIGNMENTS  — 

for  benefit  of  creditors,  statutory  regulations  concerning,  to  prevent 
fraud,  mandatory,  §  459. 

ASSOCIATED  WOEDS  — 

effect  of,  in  construction,  §§  263,  266. 

ATTACHMENT  — 

statute  giving  writ  of,  strictly  construed,  §  393. 
and  to  be  strictly  followed,  §  393. 
ATTORNEYS- AT-LAW  — 

females  not  eligible  by  construction  of  the  general  word  "  citizen,"  §  321. 

AUTHORITY  — 

statute  should,  if  possible,  be  so  construed  as  to  bring  it  within  the  legis- 
lative power,  §  423, 

BASTARDS  — 

acts  legitimating,  hberally  construed,  §  442. 

father  of,  affected  by  statute  made  after  begetting,  requiring  contribu- 
tion for  support  of,  §  464 
BILL  —  ACT  —  ORDINANCE  — 
definitions,  §§  60,  61,  64. 

BLACKSTONE,  SIR  W^L— 

his  views  of  the  union  of  the  fundamental  powers,  §  2. 

BOARD  OF  SUPERVISORS  — 

statute  requiring  signing  record  of  their  proceedings,  directory,  §  451. 

BONA  FIDE  PURCHASERS  — 

statutes  for  the  protection  of,  and  creditors,  not  appUcable  to  others, 
§429. 

BOUNDARIES  — 

com'ts  take  notice  of  boundaries  of  state,  §  298. 

BOUNTY  — 

hberal  construction  of,  §  442. 

BRIDGE  — 

franchise  to  buUd  not  construed  to  be  exclusive,  §  378. 

grant  of  right  to  build  does  not  include  right  to  obstruct  navigation, 

g386. 
power  to  municipal  corporation  to  lay  out  highways  does  not  include 
right  to  obstruct  navigation  by,  §  386. 

BUILDING  ]\L\TERIAL  — 

regulations  concerning,  in  fii'e  Kniits,  mandatory,  §  459. 

BURDEN  — 

statute  imposing,  or  exempting  from  common,  strictly  construed,  §§  361- 
304. 

BY-LAWS  — 

not  judicially  noticed,  §  296. 

penalty  of,  may  be  inciurred  without  criminal  mind,  §  355. 


638  INDEX. 

CALENDAR  — 

courts  take  notice  of,  §  302. 

CASUS  OMISSUS  — 

can  never  be  supplied  by  court,  §§  430,  433. 
not  the  province  of  courts  to  supply  defective  enactments,  §  43L 
act  providing  for  companies  to  make  and  supply  gas  does  not  authOTize 
them  to  supply  natural  gas,  §  433. 

CENSUS  — 

courts  take  judicial  notice  of  the  resiilts  of,  when  official,  §  298b 

CERTIORARI  — 

statute  granting,  liberally  construed,  §  440. 

CHARGE  TO  JURY  — 

remedial  provision  for  filing  of  record,  §  437. 
requirement  to  be  in  writing,  how  construed,  §  452. 

CHARTER  — 

of  corporation,  serves  twofold  purpose :  to  create  and  define  the  agree- 
ment between  members,  §  382. 
is  the  measm-e  of  the  corporate  powers,  §  382. 

CHILD  — 

how  construed,  §  258. 

illegitimate,  when  entitled  to  statutory  rights  granted  to,  §  371. 

includes  grandchild,  §  253. 

CITIZEN  — 

comprehensively  understood  includes  females,  but  they  maybe  excluded 
in  considering  existing  laws  and  their  policy,  §  331. 

CLAIM  — 

definition  of,  253. 

COLONIAL  LAWS,  §§  17, 18. 

COLONISTS  — 

right  of,  to  laws  of  mother  country,  §  15. 

the  force  and  nature  of  such  laws,  §  16. 
what  Enghsh  statutes  brought  by,  to  this  country,  §§  15, 16, 195. 
EngUsh  statutes  passed  after  establishment  of  colonies,  §  17. 

COMITY  — 

as  to  efi'ect  of  foreign  laws,  §  12. 

transitoiy  rights  enforcible  subject  to  principles  of,  §  13. 

foreign  law  considered  by,  §§  184,  188. 

COMMON  COUNCIL  — 

being  gianted  power  to  judge  of  the  election  of  its  members  does  not 

oust  the  courts  of  jurisdiction,  §  384 
acts  prohibiting  members  being  interested  in  contracts,  business,  etc,  of 

municipality,  §  444 
mandatory  provisions  governing  proceedings  by,  §  457. 
giving  power,  and  permissive  in  form,  §  462. 


INDEX.  639 

COMMON  LAW  (see  Colonists)  — 

act  mitigating  rigorous  rule  of,  relative  to  ship-owners,  how  construed, 

§442. 
statutes  in  derogation  of,  strictly  construed,  §§  139,  290,  400. 

if  remedial,  liberally  consti'ued,  g§  400,  401. 
when  a  statute  changes  a  comzuon-law  offense,  it  is  still  a  common-law 

offense,  §  142. 
it  is  repealed  when  a  statute  defines  and  enacts  a  common-law  offense 

and  prescribes  a  penalty,  §  142. 
words  having  delinite  sense  in  the,  to  be  construed  by,  §§  253,  291. 

"heir,"  one  capable  of  inheriting;  "actions,"  "svut,"  "final  judg- 
ment," "party,"  §254. 
rules  of  interpretation  derived  from,  §  289. 
its  part  in  our  jurisprudence,  §  289. 
not  presumed  the  legislature  intends  to  make  innovations  upon,  beyond 

necessity,  §  290. 
statutory  lien  has  common-law  incidents,  §  290. 
available  to  ftimish  means  to  effectuate  a  statute,  §  291. 
statute  in  affirmance  of,  construed  by,  §  291. 
statutes  in  amendment  of,  construed  in  hght  of,  §  291, 
covirts  take  notice  of,  §  295. 

CXDMMUNIS  ERROR  FACIT  JUS  — 
when  may  be  invoked,  §§  309,  311, 

COMPENSATION  — 

for  land  taken  for  pubhc  use  to  be  sought  according  to  statute,  §  398. 
acts  giving,  to  persons  whose  property  taken  compulsorily,  §  441. 

COMPETITIVE  BIDDING  — 

requirement  to  let  contract  by,  under  m\micipal  charter,  imperative^ 
§457. 
sealed  bids,  and  opening  of,  §  458L 
COMPUTATION  OF  TIME  — 

general  nile  of  computing  time  consisting  of  days,  weeks,  months  or 

years,  §  111. 
the  period  consists  of  entire  days,  §  111. 
when  fractions  of  a  day  recognized,  §  110. 
when  computation  from  an  act  done  or  date,  the  day  of  that  act  or  date 

excluded,  §  112. 
"  from,"  is  a  term  of  exclusion,  §  112. 
the  words  "to,"  "  till"  or  "until"  inclusive,  §  113. 

the  first  day  excluded,  and  the  last  included  in  computing  the 
period,  §  112. 
computation,  when  a  summons  or  notice  required  to  be  served  a  given 
number  of  days,  §  113, 
where  right  to  be  exercised  within  a  determinate  period,  §  114 
when  Sundays  included  or  excluded,  §  115. 
CONDITION  — 

if  act  forbidden  except  on,  and  condition  is  impossible,  the  prohibition 
is  absolute,  §  222. 


6i0  INDEX. 

CONGRESS  — 

has  only  delegated  powers  enumerated,  §  4 

their  scope,  §§  31,  23. 
power  lo  legislate  for  territories,  §  23. 

CONSEQUENCES  — 

courts  have  no  concern  with,  when  the  law  is  plain,  §  824 
it  is  then  their  simple  duty  to  execute  it,  §  324. 
CONSTITUTION  (see  Titles  of  Statutes)  — 

the  great  charter  of  repubhcan  government,  §  3. 
the  organic  and  paramount  law,  §  2. 
defines  and  divides  the  governmental  powers,  §  3. 
separation  of  legislative,  executive  and  judicial  powers,  §§  3-5. 
requirements  as  to  legislative  procedure  mandatory,  §§  26,  41,  42,  5^ 
64-66. 
as  to  legislative  powers,  §§  63-66. 
as  to  titles  and  subjects  of  statutes,  §  76. 
generally  regarded  as  mandatory,  §§  79-81,  117. 
mischief  intended  to  be  cured,  §  78. 

liberally  construed  to  aid  legislation  not  within  mischief,  §§  83, 92, 93. 
prohibition  of  special  and  local  laws,  §  116. 
reqviirement  of  general  laws,  and  their  uniform  operation,  §  116. 
whether  general  laws  can  be  made  applicable  is  a  legislative  question, 
§117. 
if  a  general  law  exists,  that  question  answered,  §  118. 
imperative  to  pass  only  general  laws  on  enumerated  subject,  §  118. 
appUcations  of  general  words  of  statute  denied  or  excepted  when  im- 
constitutional,  §  836. 
CONSTRUCTION  (see  Contemporaneous  Construction;  Liberal  Con- 
struction; Strict  Construction;  Words  and  Phrases)  — 
re-enactment  of  statutes  to  prevent  imphed  repeal,  §§  138,  148-153. 
title  by  entireties  not  abolished  by  statute  giving  married  woman  con- 

ti'ol  of  her  separate  estate,  §  150. 
when  general  and  a  particular  intent  expressed,  latter  prevails,  §§  153, 

158,  159,  167,  216,  222. 
statute  to  take  effect  at  a  futm-e  day,  how  consti-ued,  §  160. 
of  re-enacted  statutes,  §  168. 
of  repealing  statutes,  §  168. 

reference  had  to  pre-existing  law  in  construction  of  revision,  §  162. 
Uberal,  of  remedial  statutes,  §  207. 

how  quahfied  by  other  rules  of  constmction,  §  207. 
as  where  punitive  compensation  for  wrong,  §  308. 
strict,  of  certain  statvites  of  remedial  natm-e,  §  207. 
of  penal  statutes  against  accused,  §  208. 
of  statutes  in  derogation  of  common  law,  §  207. 
of  statutes  for  taking  private  property  for  pubUc  use,  §  207. 
authorising  svmimary  proceedings,  §  207. 
more  or  less  strict  according  to  severity  of  penalty,  §  308. 
use  of  title  of  statute  in,  §  310. 
effect  of  constitutional  restriction  to  one  subject  expressed  in  title,  §  21L 


INDEX.  C41 

■CONSTRUCTION  (continueil)  — 

language  of  act  to  be  construed  in  view  of  title,  §  211. 

value  of  preamble  for,  g§  212,  213,  247. 

one  part  of  statute  to  be  construed  with  another,  §  215. 

presumed  all  parts  intended  to  harmonize,  §  215. 

general  words  may  be  (lualified  by  expression  of  partievdar  intent,  §  216. 

general  act  may  be  limited  by  excei)tions,  provisos,  etc.,  §  216. 

partial  couHict  may  cause  an  excei)tiun,  g  217. 

not  allowed  to  revoke  or  alter  a  statute  when  words  may  have  proper 

effect  without,  §  217. 
contradictions,  however,  cannot  stand  together,  §  217. 
statute  itself  furnishes  the  best  means  of  its  own  exposition,  §  219. 

when  intention  thus  ascertained  it  will  prevail,  ^  219. 
effect  of  provisos,  exceptions  and  saving  clauses,  §  222. 

what  they  quahfy,  g  222. 

presumption  that  what  is  excepted  would  otherwise  be  within  pur- 
view, g  222. 

proviso  sti'ictly  construed,  §  223. 

the  intention  of  provisions  qualified  by  provisos,  saving  clauses, 
etc.,  to  prevail,  §§  221,  228. 
legislative,  has  weight,  g  229. 

to  depart  from  literal,  what  two  things  necessary,  §  238. 
effect  to  be  given  to  every  part,  §§  239,  240. 
inconsistent  expressions  to  be  harmonized,  §§  239,  260. 
to  be  consti'ued  as  a  whole  and  so  as  to  accomplish  the  legislative  intent, 

§§  239-246. 
of  words  and  phrases,  §§  218,  219,  247-255. 
of  re-enacted  statutes,  §g  255,  256. 
of  statutes  adopted  by  general  reference,  §  257. 
of  statute  incorporated  in  another,  §  257. 
of  words  of  reference,  §  257. 
with  reference  to  grammatical  sense,  §§  258,  259. 
should  receive  reasonable  and  common  sense,  §  259. 
mistakes  may  be  corrected  by,  §  260. 

mistaken  reference  may  be  corrected  by  context,  §  260. 

where  one  word  has  been  used  for  another,  or  omitted,  §  260. 

the  strict  letter  is  thus  made  to  yield  to  the  mtention,  §  260. 
meaningless  words  may  be  eUminated  by,  §  260. 
to  supply  omitted  words,  or  read  statute  in  different  words,  intent  must 

be  clearly  expressed,  §  260. 
of  associated  words,  §§  262-266. 
of  relative  and  quaJifyiug  words  and  phrases,  §  267. 
when  general  words  follow  particidar,  g§  268-281. 
reddendo  singidar  singidis,  g  282. 

regiilations  on  a  given  general  subject  will  extend  to  new  class  of  same 
subject  subsequently  added,  §  284. 

and  exceptions  in  such  regidations  wUl  apply,  §  284 
doubtful  provisions  not  to  be  constiaied  to  conflict  with  general  princi- 
ples, §  287. 
41 


642  INDEX. 

(X)NSTRUCTION  (continued)  — 

of  statutes  in  pari  materia,  §  288. 

with  reference  to  the  common  law,  §  289. 

a  statute  should  be  construed  as  a  whole  with  reference  to  the  whole 

system  of  which  it  is  a  part,  §  219. 
value  of  preamble  in,  §§  212,  213,  247. 
extrinsic  facts,  wliich  are  supposed  to  have  been  known  to  legislature, 

not  provable  to  aid,  §  298. 
liberal,  §§  408-445. 
of  statute  of  Hmitations,  §§  424-426. 

of  old  statutes  re-enacted  after  having  received  a  construction,  §  424 
when  statute  has  made  no  exception  the  covirts  can  make  none,  §  427. 
of  statute  of  frauds,  §  427. 

to  prevent  delays  in  obtaining  judgment,  §  435. 
relative  to  arbitrations,  §  439. 
giving  right  of  appeal,  §  444 
extending  elective  franclaise,  §  441. 
taking  away  penalties,  §  441. 

providing   compensation  to  parties  whose  property  compulsorily 
taken,  §  441. 
of  provisions  in  favor  of  tax-payers,  §  441. 

in  favor  of  those  affected  by  proceedings  in  derogation  of  common 

right,  §  441. 
for  protection  of  officers,  §  442. 
married  women,  §  442, 
of  acts  for  accomplishment  of  pubhc  objects,  §  443. 
sti'ict,  wUl  not  be  given  to  penal  laws  which  are  declared  by  the  statute 

to  be  remedial,  §  445. 
as  to  being  du-ectory  or  mandatory,  §§  446-463. 
opposed  to  giving  retrospective  effect,  §  463. 
or  to  affect  existing  rights,  §  464 
or  to  create  new  obUgations,  §  464 
as  to  being  ex  post  facto,  §§  465^70. 
as  to  impairing  obhgation  of  conti'acts,  §§  471-479. 
documents  for,  to  be  read  in  view  of  siu-rounding  facts,  §  300. 
any  document  equally  authentic  as  a  statute  in  which  the  objects  of  a 

statute  are  made  known  may  be  referred  to,  §  300. 
journals  of  convention  referred  to  to  learn  intention  of  words  in  con- 
stitution, §  300. 
of  legislature  for  hke  purpose,  §  300. 
or  history  of  enactment,  §  300. 
or  to  see  if  duly  passed,  §  300. 
declarations  of  members  of  legislature  as  aid  to  construction,  §  300. 
contemporaneous,  when  invoked,  §  307. 
statutory,  prospectively  conclusive,  §  307. 
when  acted  on  by  inferior  courts,  §  307. 
when  decisions  conflicting,  §  307. 
effect  of  general  usage  on,  §  308. 
.  local  differences  in  construction  of  general  statutes  disregarded,  §  808. 


INDEX.  G43 

CONSTRUCTION  (continued)  — 

practical,  by  those  for  whom  law  enacted  not  lightly  questioned,  §  309. 
effect  of  in  interior  department  of  the  general  government,  §  309: 
of  state  and  county  officers,  §  309. 
should  be  adhered  to,  §§  310,  313-320. 
■with  reference  to  eirects  and  consequences,  §§  321-324 

presumed  not  intended  to  affect  existing  institutions,  systems  and 

policies  any  fm-ther  than  the  terms  of  the  statute  require,  §  321. 
ought  to  be  reasonable  if  the  words  will  permit,  §§  322,  324 

so  that  pubUc  and  private  rights  are  not  infringed,  §§  322,  323, 
334 
considerations  of  what  is  reasonable,  convenient,  causes  hardship  or 

injustice  have  weight,  §§  322,  323. 
pernicious  consequences  will  be  avoided  by,  if  possible,  §  322. 
presumed  tliat  legislature  intend  every  part  of  a  law  to  have  effect* 
g  325. 
that  statutes  passed  from  good  motives,  §  330. 
that  facts  necessary  to  validity  of  statute  existed,  §  331. 
that  the  legislature  did  not  intend  a  vain  tiling,  §  331. 
or  to  violate  the  constitution,  §  331. 
strict  and  hberal  compared,  g§  346-3^18. 
strict,  not  precise  converse  of  Uberal,  §§  347,  348. 

does  not  admit  of  expansion  beyond  letter,  §§  347,  348. 
strict,  varies  according  to  gravity  of  consequences,  §  347. 
strict,  results  from  many  rules  of,  §  347. 

strict,  consistent  with  effect  to  carry  out  intention,  §§  348-350. 
strict^  of  penal  statutes,  §§  347-361. 
penal  statutes  cannot  be  extended  beyond  their-  letter  by,  §  350. 

cases  within  the  policy  or  miscliief  of  statute  excluded  if  not  within 
the  letter,  gg  350-352. 
etrict,  does  not  preclude  the  application  of  common  sense,  §§  350-3o6w 
most  favorable  to  accused  to  be  adopted,  §§  353,  357. 
of  revenue  laws,  §§  361-363,  365. 

exemption  from  taxation  and  other  common  burdens,  §  364 
statutes  against  common  right,  §  366. 
of  limitations,  §  368. 
as  to  new  trials  and  appeals,  §  369. 
interfering  with  legitimate  industries,  §  370. 
of  statutes  creating  liabilities,  §§  371-377. 
for  costs,  §§  371,  372. 
causing  death,  §  371. 
discharging  insolvent  debtors,  §  372. 
granting  exemptions  from  execution,  §  372. 

allowing  recoveries  for  damages  resulting  from  intoxication,  against 
sellers,  etc.,  §§  373-377. 
of  pubUc  grants,  §§  378,  379. 
delegation  of  power,  §§  379-396. 
of  statutory  rights,  §§  397,  398. 
statutes  in  derogation  of  the  common  law.  §  400. 


641  INDEX. 

CONSTRUCTION  (continued)  — 

interpretation  clause  authoritative,  §  402. 

contemporaneous  legislative  consti-uction  high  evidence  of  intention, 

§403. 
so  far  as  it  professes  to  declare  the  past  or  present  meaning  of  statute, 

not  binding  on  the  courts,  §  402. 
policy  of  law,  how  considered  for,  §  407. 

CONTEMPORANEOUS  CONSTRUCTION  — 
what  is,  §g  307-312. ' 
when  invoked,  §  307. 

length  of  time  continued  important  consideration,  §  312. 
has  implied  judicial,  legislative  and  popvilar  sanction,  §§  307,  809. 
where  statute  doubtful,  effect  of  long  construction  by  inferior  courts, 

§307. 
of  constitution,  long  acquiesced  in,  §  307. 
by  official  usage,  §  309. 
judicial  interpretation,  §  310. 

•CONTEXT  — 

may  serve  to  engraft  an  exception  to  general  words  by  implication,  §  216. 
to  restrict  general  words,  or  expand  them,  §§  216,  239-241. 
words  expanded  or  hmited  to  agree  with  general  intent,  ^■§  218,  237-246. 
statute  itself  furnishes  the  best  means  of  its  own  exposition,  §§  219,  237, 

241. 
when  the  words  not  certam,  intent  may  be  collected  from  context,  etc., 

§241. 
may  modify  meaning  and  effect  of  words  of  absolute  repeal,  §  242. 

and  of  particular  words  and  expressions,  §  242. 
may  show  the  word  orphan  to  mean  minor,  §  242. 
jury  merely  a  credible  person,  §  242. 
birds  not  live  animals,  §  242. 
may  show  intent  that  limited  expression  shall  be  expanded,  §  245. 
to  be  consulted  to  learn  in  what  sense  words  intended  to  be  used,  §  246. 
wiU  not  change  effect  of  words  contraiy  to  intent,  §  246. 
popular  meaning  of  words  accepted  imless  contrary  intention  appeai-s 
by,  §  250. 
othei-wise  when  the  context  shows  different  intention  though  a 
general  statute  directs  that  the  popular  meaning  be  followed, 
§251.' 
■"  and  "  and  "  or  "  used  indifferently,  xmless   other  intent  indicated  in, 

§252. 
effect  of,  showing  repeated  use  of  same  words,  §  254. 
available  to  correct  mistakes,  g  260. 
effect  of  associated  words,  §§  262-265. 
effect  of,  when  general  words  f oUow  particular,  §§  268-281, 

CONTINUING  POWER  — 
when  not  conferred,  §  482. 


INDEX.  C45 

CONTRACTS  — 

illegal  when  in  contravention  of  law,  §§  335,  386. 

may  be  valid  though  contiavening  revenue  regulations,  §  336. 

obhgation  of,  detined,  g?;  471,  477. 

what  are,  within  proliibition  of  laws  inipaiiiug  obligation  of,  §  472. 

certam  laws  part  of,  §  471. 

state,  like  a  natural  person,  bound  by  its  contracts,  g  472. 

municipal  charters  not,  §  473. 

charters  giving  bounties,  patents  and  copyrights  are,  §  473. 

may  be  vahdated  by  statute,  §  474. 

of  state,  protected  f  roua  impairment  like  those  of  private  persons,  §  475. 

how  its  contracts  may  be  impaired,  §  475. 
if  a  contract  a  nullity  it  cannot  be  made  good  by  subsequent  legislation^ 

§480. 
when,  may  be  made  good  by  statute,  §  483. 

CONTRADICTIONS  — 

cannot  stand  together,  §  217. 

how  resolved  where  general  provision,  applicable  to  multitude  of  sub- 
jects, antagonized  by  another,  appUcable  to  a  pait  of  those  sub- 
jects, §  217. 
considerations  of  reason  and  justice  have  weight  in  adjusting  such 
conflict,  §  217. 
effect  of  analogies  in  such  case,  §  217. 
effect  of  total  confUct,  §  220. 
effect  of,  by  provisos  and  saving  clauses,  §  221. 

CONVENIENCE  — 

argument  based  on,  forcible,  §  152. 

out  of  place  against  plainly  expressed  intention,  §  238. 

considered  in  construction  of  statutes,  §§  322,  324. 

argument  upon,  has  no  force  when  the  law  is  plain,  §§  325,  332. 

presumption  that  mconvenience,  injustice  and  absmdity  not  intended, 

§332. 
acts  remedial  when  intended  to  promote  public,  §  438. 
CONVICTION  — 

can  be  none  for  offense  unless  the  law  violated  be  in  force,  §  166. 
CORPORATIONS  — 

established  by  pubhc  law,  judicially  noticed,  §  295. 

municiiial,  vested  with  portion  of  governmental  authority,  §  380. 

confined  in  their  action  to  powei-s  granted,  §  380. 
grants  to,  whether  public  or  private,  strictly  constmed,  §§  380,  381,  383. 
city  having  power  to  make  contracts  to  supply  water  cannot  constitute 

a  monopoly,  §  384. 
charter  construed  with  reference  to  the  whole,  and  not  the  individuals, 

§381. 
cannot  be  created  except  by  statute,  §  382. 
powers  of,  only  such  as  statutes  confer,  §  382. 
no  particular  form  of  words  necessary  to  create,  §,  383. 
may  result  from  necessary  implication,  §  383. 


*64:6  INDEX. 

COEPORATIONS  (continued)  — 

enumeration  of  powers  implies  exclusion  of  others,  §  382. 
may  be  organized  under  general  law  for  every  purpose  within  its  lan- 
guage, §  383. 
even  for  a  business  which  could  not  have  been  within  the  legislative 
contemplation,  §  383. 
granting  to  common  council  power  to  judge  of  the  election  of  its  mem- 
bers does  not  oust  the  comrts  of  jurisdiction,  §  384 
mvist  pursue  statutory  modes  when  any  are  prescribed ;  otherwise  may 

act  in  customary  way,  §  385. 
grants  of  special  powers  to,  to  be  followed  as  mandatory,  §  456. 
consti-uction  of  law  authorizing,  to  act  when  certificate  of  organization 

filed,  §  456. 
must  conform  their  action  to  law  of  their  creation,  §  456. 
all  subject  to  the  exercise  of  the  essential  powers  of  government,  §  473. 
Uabihty  of  stockholders  cannot  be  altered  by  law  subsequent  to  con- 
ti'acting  debt,  §  474 

COSTS  — 

statutes  allowing,  how  construed,  §  371. 

statutory  provision  permissive  in  form  as  to,  imperative,  §  461. 
construction  of  statute  relative  to  payment  of  by  county  when  convict 
unable  to  pay,  §  419. 

COUNTIES  — 

subject  to  legislative  control,  §  473. 

COURTS  — 

construction  of  foreign  law  by,  §  192. 

have  power  to  declare  invaUdity  of  unconstitutional  laws,  §  831. 
will  use  their  best  energies  to  reconcile  acts  with  constitution,  §  331. 
of  two  possible  consti'uctions  will  adopt  that  which  will  maintain  stat- 
ute, §  332. 
wUl  not  pervert  language  and  sense  of  statute  to  maintain  it  when 

plainly  unconstitutional,  §  333. 
■judicially  notice  pubhc  statutes,  §  335. 

what  included  in  supervisory  power  over  inferior  tribunals,  §  342. 
inherent  power  of,  to  make  rules,  §  342. 
statutes  not  presumed  to  be  intended  to  oust  jurisdiction  of  superior, 

§  333. 
constitutional  directions  as  to  scope  of  decision  directory,  §  452. 
statutory  direction  that  instructions  to  jviry  be  in  writing,  how  con- 
strued, §  451. 
that  they  caution  jury,  directory,  §  452. 
to  advertise  adjomiiment  of,  directory,  §  452. 
terms  of,  fixed  by  law,  judicially  noticed,  §  298. 
take  notice  who  are  their  own  officers,  §  299. 
and  their  signatm-es,  §  299. 
of  their  own  records,  §  299. 
not  of  what  relates  to  another  case,  §  299. 
garnishment  not  another  case,  §  299. 


INDEX. 


C47 


COURTS  (continued)  — 

provisions  gi-anting  special  powers  to,  mandatory,  §  456. 

words  permissive  in  form,  or  importing  power  and  authority,  imper- 
ative, §  461. 

may  declare  statutes,  contravening  constitution,  void,  §  169. 

take  judicial  notice  of  public  statutes,  §§  181,  198. 

and  their  derivation,  validity,  commencement  and  operation,  §  181. 

state,  take  notice  of  federal  statutes,  g  181. 

will  inform  themselves  of  facts  which  affect  statutes,  §§  181-183,  292-313. 

cannot  judge  of  wisdom  of  statutes,  §  235. 

cannot  correct  excesses  or  omissions  in,  §  235. 

confined  to  statutory  power,  §  391. 

to  take  notice  of  all  proper  records  affecting  the  validity  of  statutes, 
§§  41-45,  52-54. 

power  of  to  make  rvdes,  §  68. 

to  determine  what  are  general  laws,  §  118. 

are  not  to  determine  when  general  laws  can  be  made  applicable,  §  118. 

COVENANT  — 

none  impUed  m  pubUc  grants,  §  378. 

CRIMES  — 

ai'e  in  theu*  nature  local,  §  12. 

pimishable  exclusively  in  tlie  country  where  committed,  §  12. 

CRimNAL  MIND  — 

necessary  to  conviction  for  offenses,  §§  354,  355. 
in  what  the  wrongful  intention  may  consist,  g  355. 
by-laws  may  be  violated  without  tliis  element,  §  355. 
reasonable  belief  in  existence  of  chcumstances  may  rebut,  §  355. 

may  have  exculpating  effect,  like  absence  of  reasoning  faculty, 
§355. 

CTBIULATIVE  — 

grant  of  jmisdiction,  when  not  exclusive,  §§  396,  399. 
new  remedy  where  one  already  exists,  §  399. 

CURATIVE  ACT  — 

as  to  instruments  recorded,  held  not  repealed  by  subsequent  statute  pro- 
hibiting recording  such  insti'uments,  §  148. 
have  a  wholesome  effect,  §  206. 
legislatiure  has  power  to  pass,  §  483. 

if  they  do  not  interfere  with  vested  rights  nor  impair  obligation  of 
conti'acts,  §  483. 
when  vahd,  §  483. 
may  vahdate  contracts  and  deeds  defectively  executed,  acknowledged 

or  recorded,  §  482. 
marriage  may  be  validated,  §  483. 

and  offspring  legitimated,  §  483. 
jurisdictional  facts  bemg  wantmg,  a  proceeding  requhing  them  fatally 
defective,  ^§  323,  484. 
and  such  defects  cannot  be  cured  by  legislation,  g  484 


64  8  IKDEX. 

DA3IAGES  — 

allowed  by  statute  for  causing  death,  §  371. 
resulting  from  intoxication,  §§  373-877. 

no  apportionment  of,  among  vendors  of  liquors,  §  877. 

DEATH  — 

statutes  giving  right  of  action  for,  to  widow  and  next  of  kin,  how  con- 
sti-ued,  g§  371,  398. 
confined  generally  to  pecimiary  damages,  §  371. 
liberal  consti-uction  of  statute  of  limitations  as  appUed  to  actions  abated 
by  death  or  marriage,  §  424. 

DEED  OF  TEUST  — 

of  mode  of  security,  required  on  loaning  pubUc  funds,  not  imperative, 
^452. 
DELEGATION  — 

of  legislative  power,  §§  67-73. 

of  taxmg  power,  strictly  construed,  §  365. 

of  governmental  authority,  must  be  clearly  made,  §  380. 

powers  granted  to  city  not  to  be  delegated  to  committee,  §  384 

DEVISE  — 

power  to  take  land  by,  not  implied  from  that  to  incorporate,  §  378» 

DIRECTORY  STATUTES  — 

explanation  of,  in  comparison  with  mandatory  statutes,  §  446. 
no  universal  rule  as  to,  §  447. 

aflfirmative  statutes  do  not  always  imply  a  negative,  §  447. 
importance  of  provision  to  be  considered,  §  447. 

its  relation  to  others,  §  447. 
provisions  as  to  time,  g§  448-450. 

which  are  formal  and  incidental,  §§  451-453. 

substantial  observance  of,  sufficient,  §  451. 

DISTANCE  — 

how  computed  on  a  river,  §  253. 

DOCKET  — 

of  judgments,  statutory  directions  concerning,  how  construed,  §  451. 

EJUSDEM  GENERIS  — 

when  things  included  in  general  words  following  particular  must  be^ 

§§  268-276. 
such  general  words  wiU  not  include  things  or  persons  of  a  superior 

class,  §  277. 
consti-uction  when  enumeration  is  exhaustive,  §  278. 
intention  appearing  it  controls  these  iTdes,  §§  279,  280. 

ELECTION  — 

statutes  requiring  proclamation  concerning,  mandatory,  §  451. 
that  inspectors  of,  be  sworn,  directory,  §  452. 
concerning  manner  of  conducting,  directory,  §  452. 
power  gi-anted  to  common  council  to  jvidge  of  election  of  their  mem- 
bers not  exclusive.  §  384. 


INDEX.  C49' 

ELECTIVE  FRANCHISE  — 

acts  for  extension  of,  liberaUy  construed,  §  441. 

EMERGENCY  CLAUSE  — 

constitutional  jjrovisions  requiring,  §  108. 

effect  of  omitting,  §  108. 
sufficiency  of  emergency  is  for  the  legislature,  §  108. 

EMINENT  DOMAIN  — 

grant  of  right  to  take  private  property  without  consent  of  owner  must 
be  in  plain  words,  g  387. 
strictly  construed,  g  387. 
statutes  for  condemnation  of  private  property  not  to  be  extended  by 

implication,  §  387. 
being  a  comn\on-Iaw  right,  statutes  regulating  its  exercise  not  to  receive 

most  rigid  construction,  §  387. 
what  interest  or  estate  in  lands  to  be  taken,  §  387. 
necessitj'  of  taking  a  juchcial  question,  §  387. 
determination  of  corporate  board  not  conclusive,  §  387. 
in  construing  acts  for  exercise  of,  two  lodes  recognized,  §  887. 
exercise  of,  in  respect  to  property  akeady  devoted  to  pubUc  use,  §  388. 
power  to  invade  prior  appropriation  not  ordinarily  mipUed,  §  388. 
consti'uction  with  reference  to  property  already  appropriated  to  public 

use,  §  389. 
mode  provided  for  obtaining  compensation  exclusive,  §  398. 
never  imphed  that  the  government  has  smrrendered  the  right  of,  §  378. 
every  material  requirement  of  the  statute  to  be  sti'ictly  observed,  §  456. 
proceedings  to  show  this  on  then-  face,  §  456. 

ENABLING  STATUTES  — 

to  be  strictly  pursued,  §  454. 
ENACTING  STYLE  — 

importance  of,  under  constitutions  prescribing  form,  §§  62-66,  214. 
ENACTMENT  — 

proof  of,  §§  27-45. 
ENUMERATION  — 

object  of,  in  statute,  §  270. 

no  a  priori  presumption  that  tilings  enumerated  are  aU  of  the  same 
kind,  §  270. 

when  general  term  follows,  §§  268-281. 

weakens  general  law  as  to  things  not  expressed,  §  828. 
EQUITABLE  CONSTRUCTION  — 

what  is,  §g  413,  414. 

now  obsolete,  §§  413,  414 
ESSENCE  — 

of  proceeding,  statutes  relating  to,  mandatory,  §  456. 

EXCEPTION  — 
what  is,  §  222. 
inti-oduced  to  qualify  general  language.  §  216. 


650  INDEX. 

EXCEPTION  (continued)  — 

intended  when  particular  intent  expressed  in  opposition  to  general  in- 
tent, §  216. 

partial  conflict  between  statutes  causes,  §§  217,  243. 

context  may  have  the  effect  to  engi-af t  an  exception  by  implication, 
§§  216,  243. 

an  exception  is  not  co-extensive  with  provision  it  qualifies,  §  219. 

when  part  of  enacting  clause  restricts  merely  to  matter  excepted,  §  222. 

is  co-extensive  with  matter  which  precedes,  §  222. 
not  always,  §  222. 

must  be  negatived  in  pleading,  §  222. 

express  mention  of  certain,  excludes  others,  §  326. 

strengthens  force  of  general  law,  §  328. 

where  the  statute  of  limitations  makes  none,  the  courts  cannot  make 
any,  §  427. 
unless  in  case  of  civil  war,  §  427. 

exception  from  a  statute  hberally  construed  will  be  construed  strictly, 
§223. 

exceptions  to  general  competency  of  witnesses,  §  224. 

immemorial  practice  may  conti'ol  in  consti'uction  of  general  words  of 
statute,  §  429. 

"EXECUTION  — 

statute  requu-ing  ofiicer  to  file  certificate  of  sale  under,  directory,  §  452. 
so  the  requhement  to  note  on  it  the  time  of  its  receipt,  §  452. 
du-ecting  how  levy  under  be  made,  directory,  §  452. 
requirement  that  sales  under  be  made  at  coui't-house,  mandatory,  §  455. 
EXECUTIVE  POWER  — 

of  executive  department,  §  4 
EXECUTORS  — 

construction  of  remedial  statute  relating  to  new  appointment  of,  on 

change  of  residence,  §  419. 
act  remedial  providing  for  execution  of  powers  of  will  by  succession  of, 
§  436. 

.EXEMPTIONS  — 

in  penal  statutes  construed  hberally  for  the  accused,  §  227. 

in  favor  of  debtors  hberally  construed,  §§  223,  420-423. 

from  toUs  on  turnpikes  UberaUy  construed  in  favor  of  agriculture, 
§  420. 

yoke  of  oxen  not  necessarily  yoke  broken  to  work,  §  420. 

from  all  taxation  may  by  evident  intention  in  context  be  only  from 
taxation  for  revenue,  §  243. 

confined  to  taxes  mentioned  in  the  act,  §  246. 

what  included  in  one-horse  or  ox-cart,  §  248. 

statutes  exempting  from  taxes  or  other  common  burden  strictly  con- 
strued, §  364. 

of  property  from  execution,  how  construed,  §§  372,  422. 

what  change  admissible  as  to  existing  debts  in  favor  of  debtors,  §§  477, 
478. 


INDEX.  651 

'EX  POST  FACTO  LAWS  — 

effect  of  changing  penalty  by  adding  milder  alternative,  §  143. 

prohibited  by  constitution,  §§  206,  403. 

definition  of,  §  405. 

application  of  prohibition  in  federal  constitution,  §§  465-470. 

prohibition  of,  ai)pUes  only  to  ci-iminal  laws,  §  465. 

test  of  application,  §g  405-407. 

requiring  test  oath  as  to  past  transactions,  §  467. 
present  acts,  §  408. 

enlarging  class  of  witnesses,  §  468. 

taking  away  teclinical  objections,  §  469. 

changing  place  of  trial,  §  409. 

providing  new  tribunal,  §  409. 

new  treaties  for  surrender  of  fugitives,  §  469. 

giving  additional  challenges  to  peofjle,  §  469. 

reducing  defendants'  challenges,  §  469. 

modifying  grounds  of  challenge  for  cause,  §  469. 

authorizing  amendments  of  indictments,  §  469. 

regulating  the  framing  of  indictments  to  facihtate  procedure,  §  469. 

requiring  defense  of  insanity  to  be  pleaded,  §  469. 

allowing  attorney  fee  to  be  added  to  penalty  recoverable  by  civil  action 
for  unlawful  Uquor  tratfic,  §  409. 

providing  for  severer  penalty  for  repetition  of  offense,  §  468. 

change  of  punishment  is,  §  470. 

except  abatement  of  separable  part,  §  470. 
EXPRESSIO  UNIUS  EST  EXCLUSIO  ALTERIUS  — 

maxim  in  aid  of  interpretation  to  ascertain  intention,  §  825. 

when  mention  of  one  or  more  things  exclusive,  §§  325,  326. 

not  applicable  when  instance  stated  by  way  of  example  merely,  §  329. 
nor  when  declaratory  of  common  law,  §  329. 
nor  when  tliere  is  reason  for  mentioning  one  and  not  other,  §  329. 

express  saving,  exception,  etc.,  exclusive,  g  328. 

when  statute  enumerates  persons  or  things  to  be  affected,  others  ex- 
cluded, §  327. 

■when  statute  mentions  the  property  on  wliich  rates  to  be  levied,  they 
can  be  levied  on  no  other,  §  327. 

enumeration  of  cu-cumstances  constituting  personal  qualification  exclu- 
sive, §  327. 

repeal  limited  to  clause  specified,  g  327. 

revision  repeals  acts  not  included,  g  327. 

statutory  jm-isdiction  confined  to  enumerated  subjects,  §  327. 

when  right  given  by  statute  and  remedy  therefor  prescribed,  it  is  exclu- 
sive, §§  399,  454-459. 

when  new  power  granted,  and  means  of  executing  it,  they  are  exclu- 
sive, §§  399,  454-459. 

when  emancipation  forbidden  by  general  law,  an  act  permitting  it  in 
a  particular  form,  exclusive,  §  454. 

enabling  statutes  governed  by  tliis  maxim,  §  454. 

as  to  time,  §  456. 


652  INDEX. 

FEDERAL  STATUTES  — 

tlieir  scope  and  authority,  §  21. 
federal  and  state  legislation  compared,  §§  21,  22. 
belong  to  one  system,  §  22. 

FEMALES  — 

presumed  not  to  be  meant  by  the  term  "  citizen  "  when  used  to  designate 
persons  who  may  be  admitted  as  attorneys,  §  321, 

FERRY  — 

f  rancliise  to  establish  not  construed  to  be  exclusive,  §  378. 

l^ublic,  not  included  in  pubhc  grant  of  land  or  water-course,  §  379. 

private  right  of,  passes  with  fee,  §  879. 
FORCIBLE  ENTRY  AND  DETAINER  — 

act  extending  remedy  by,  hberaUy  construed  as  remedial,  §  435. 
FORECLOSURE  BY  ADVERTISEMENT  — 

statute  regulating  must  be  substantially  followed,  §  390. 
no  intendments  in  favor  of  regularity,  §  390. 

such  sales  are  by  contract,  and  therefore  statute  to  have  reasonable  con- 
struction, §  391. 
FOREIGN  LAW  — 

effect  of  depends  on  comity,  §  12. 

not  judicially  noticed  by  courts,  §§  12,  295. 

rejected  when  repug-nant  to  local  pohcy,  §  12. 

criminatory  acts  done  imder,  and  consummated  against  law  of  forum, 
§12. 

penal,  etc.,  laws  not  enforced,  §  12. 

in  case  of  colonization,  §  15. 

laws  of  one  state  foreign  to  another  state,  §  22. 
not  foreign  in  federal  com'ts,  §  22. 

presumption  that  it  is  the  same  as  the  lex  fori,  §  184 

how  proved,  §§  188,  190. 

functions  of  com-t  and  jury  in  relation  to,  §  192. 

authoritative  exposition  of,  g§  186,  191. 

what  is,  §§  189,  190. 

proof  of  construction  of,  §  192. 
FOREIGN  NATIONS  — 

existence  of,  judicially  noticed,  §  297. 

and  their  forms  of  government,  as  recognized  by  the  executive  de- 
partment, §  297. 

FORMAL  ACTS  — 

statutory  provisions  concerning,  directory,  §§  451-453. 

FORMS  OF  LEGISLATION  (§§  60-66)  — 
when  held  to  be  directory,  §§  62, 63. 
when  held  mandatory,  §§  64,  65. 
reasons  for  holding  mandatory,  §  66. 

FRANCHISE  — 

legislature  may  grant  exclusive,  §  164 
but  will  be  strictly  construed,  §  164 


I^^)EX.  053 

{FRANCHISE  (continued)  — 

ciuiuilativo  franchises  not  exclusive  may  be  granted,  §  164. 
grants  of,  by  public,  strictly  construed,  t^  878. 
no  implication  of  an  exclusive  grant,  §  378. 
public,  can  only  be  created  by  an  act  of  the  legislature,  §  378. 
public  grants  of,  not  implied  to  be  exclusive,  §  378. 
the  gi-ant  of  right  to  take  and  exact  toll  not  implied,  g  378. 
power  to  incorporate  does  not  include  power  to  take  lands  by  de- 
vise, §  878. 

FRAUD  — 

liberal  construction  of  acts  to  prevent,  §  444 

statutory  regulations  to  prevent,  in  assignments  for  benefit  of  creditors 
mandatory,  §  459. 

FRAUDS,  STATUTE  OF  — 

liberal  construction  to  carry  out  its  purpose,  §  427. 

FUNDAMENTAL  POWERS  — 

necessity  of  their  separation,  §  2. 

how  separated  and  how  corrected,  §§  2,  3. 

the  province  of  each,  g§  2,  3. 

not  defined  in  the  constitution,  §  6. 

FUNDAMENTAL  RIGHTS  — 

statutes  not  construed  to  interfere  with,  §  290. 

GAMING  — 

what  is,  §  352. 

contract  for  purchase  of  options  is  not,  §  352. 

statutes  intended  for  protection  against,  not  applicable  to  professional 
gamblers,  g  429. 

GARNISHMENT- 

law  of,  inapplicable  to  municipal  corporations,  §  428. 
not  another  case,  §  299. 

GENERAL  LAWS  — 

what  are  such  laws,  §§  116,  120. 

a  law  applying  to  some  townships  and  excepting  others  is  not  a  general 

law,  §  159. 
when  a  general  law  exists  on  a  subject,  it  is  judicially  apparent  that 

such  a  law  can  be  made  applicable,  §  118. 
enmnerated  subjects  must  be  dealt  with  by,  §  118. 
courts  must  determine  what  are,  §  118. 

laws  are  general  when  they  deal  with  a  whole  generic  class,  §  121. 
classification  of  subjects  for  general  legislation,  §  121. 
laws  of  a  general  nature,  ^§  121-123. 
uniform  operation  of  laws  of  general  nature,  §§  121-123. 
implied  requirement  of,  §  126. 

GENERAL  PRINCIPLES  — 

doubtful  provisions  not  construed  so  as  to  conflict  witli,  §  287.  , 


654  INDEX. 

GENERAL  USAGE  — 

effect  of,  in  construction  of  statute,  §  308. 

must  be  universal,  §  308. 

practice  iuconsistent  with  statute  cannot  repeal  it,  §  308. 

of  no  avail  against  plain  statute,  §  308. 

practical  construction  by  those  for  whom  a  law  is  enacted,  §  309. 

not  allowed  to  defeat  manifest  pui-pose,  §  309. 

GEOGRAPHY  — 

courts  take  notice  of,  of  state,  §§  299,  301,  304 
of  notorious  surveys,  etc.,  §  298. 
of  civil  divisions  created  by  law,  §  298. 

GRAM^IATICAL  SENSE  — 

presumed  to  be  intended  unless  evidence  of  different  intention,  §  258. 
only  a  rule  of  interpretation  and  gives  way  when  a  different  intent  ap- 
pears, §  258. 
common-sense  construction  may  require  departure  from,  §  259. 
apphcation  of  relative  words,  §  259. 

effect  of  general  quahf ying  words  at  end  of  sentence  or  in  middle,  §  259. 
tense  of  statutes  not  always  followed,  §  259. 
relative  words  refer  to  last  antecedent,  §§  257,  259,  267. , 

GRANDCHILD  — 

when  included  under  term  cluld,  §  253. 

GRANT  OF  POWER  — 

strictly  construed  when  by  its  exercise  one  may  be  divested  of  his  prop- 
erty, §  454. 
the  prescribed  procedure  mandatory,  §  454. 

HARDSHIP  — 

considered  in  constniction  of  ambiguous  statute,  §  324 
otherwise  if  intention  plain,  §  324 

HEIR  — 

denotes  one  capable  of  inheriting,  §  253. 

HEIRS  — 

inherit  according  to  common-law  where  statute  silent,  §  432. 

HISTORY  — 

couiiB  take  judicial  notice  of,  as  to  facts  of  general  interest,  §  298. 

courts  take  more  particular  notice  of  the,  of  the  state  where  they  sit 
§298. 
HOMESTEAD  AND  EXEMPTIONS  — 

law  of,  in  pari  materia  with  dower  law,  §  284 

HOUSE  OF  LORDS  — 

branch  of  legislature  and  a  judicial  tribunal,  §  3. 
relation  of  judges  thereto,  §  3. 

IMPLICATIONS  AND  INCIDENTS  — 
what  is  a  necessary  implication,  §  336. 
wh^t  is  implied  from  a  statute  is  a  part  of  it,  §  334 


IXDEX, 


055 


IMPLICATIONS  AND  INCIDENTS  (continued)  — 

statutory  felony  includes  common-law  elements  and  incidents,  §  334. 
procurers  and  abettors  are  i)rincii)als  and  accessories  on  the  same 

terms,  §  334. 
in  such  cases,  same  peremptory  challenges  allowed,  §  334 
it  is  incident  to  all  public  laws  that  they  be  noticed  judicially  by  courts, 
§  335. 
otherwise  as  to  private  statutes,  §  335. 
if  penalty  imposed  for  doing  an  act,  it  is  impliedly  prohibited,  §  335. 
implied  that  a  contract  about  things  unlawful  is  void,  §  336. 
aU  cases  to  which  a  statute  caimot  constitutionally  apply  impliedly  ex- 
cepted, §  336. 
when  statutory  provision  general,  everything  necessary  to  make  it 

effectual  impUed,  §  337. 
public  grant  to  individuals  to  be  enjoyed  in  a  corporate  capacity  creates 
coriiox'ation,  §  337. 
of  rights,  may  be  asserted  by  statutory  designation,  §  337. 
statute  enlarging  rights  of  married  women  impliedly  aboUshed  estates 
by  curtesy,  §  338. 
disability  vmder  statute  of  limitations,  §  338. 

right  to  ti-ade  implied  from  right  to  own  and  enjoy  merchandise, 
§  338. 
where  new  statute  extends  existing  new  power,  it  is  extended  with  its 

limitations,  §  145. 
that  established  poUcy  not  intended  to  be  departed  from,  §  145. 
married  women  may  incur  Uability  for  repairs  to  separate  property, 
§338. 
private  examination  of  married  women  unnecessary  when  they  ac- 
knowledge deed  of  separate  property,  §  338. 
power  to  ti-ade  includes  that  to  borrow  money,  §  338. 
that  married  woman  borrows  on  her  separate  estate,  §  838. 
that  a  default  judgment  is  by  consent  and  not  appealable,  §  339. 
when  duty  to  repair  imphed  from  condition  to  buUd,  §  339. 
of  disability  of  minors  to  sue  for  partition  from  provision  that  plaintiff 

must  state  titles  of  pax-ties,  §  339. 
from  existence  of  a  right  that  there  is  appropriate  remedy  by  statute  or 

common  law,  §  340. 
grant  of  power  impUes  a  grant  of  aU  necessary  or  incidental  power, 

§§  341,  344,  345. 
when  measure  directed  ordinary  means  implied,  §  341. 
power  to  examine  witnesses ;  authority  to  subpoena  them  implied,  §  341. 
power  to  grant  alimony,  incident  to  divorce  jurisdiction,  §  341. 
extending  expressly  penal  regulations  to  new  subjects,  impUes  that  they 

were  not  before  included,  §  335. 
imphed  exclusion  of  tilings  not  mentioned,  §  325. 
enactment  of  law  does  not  imply  it  was  not  the  law  before,  §  329. 
power  to  sheriff  to  sell  personal  property  implies  power  to  take  posses- 
sion, §  343. 
power  to  create  a  municipal  debt  imphes  power  to  levy  taxes  to  pay  it, 
§343. 


'^56  INDEX, 

BIPRISONIMENT  FOR  DEBT  — 

not  part  of  contract,  and  may  be  abolished  without  impairing  its  obUga- 

tion,  §  478. 

laiPROVEMENTS — 

remedial  act  for  set-off  of,  §  437. 

INDICTMENT  — 

subsequent  statute  regulating  framing  or  amendments  of,  not  ex  post 
facto,  §  469. 

IN  FORMA  PAUPERIS  — 

right  so  to  sue  construed  strictly,  §  398. 

INJUSTICE  — 

argument  based  on,  forcible,  §§  152,  323,  324 

INSOLVENT  DEBTORS  — 

statutes  for  discharge  of,  strictly  construed,  §  372. 

INSTITUTIONS  — 

created  by  law  judicially  noticed,  §  295. 

INTENTION  — 

hteral  meaning  may  be  departed  from  to  avoid  absurdity  and  carry  out, 

§323. 
of  statute,  when  ascertained,  controls  in  construction:  of  its  parts,  §  218. 
general  words  restricted  to  it  and  narrower  words  expanded  to  it,  §§  218, 
219. 
may  be  cut  down  to  avoid  conflict  with  settled  pohcy,  §  218. 
when  ascertained,  §§  218,  219. 

words  may  be  altered  or  supplied  to  harmonize  parts  with  it,  §  218. 
construction  wldch  accords  best  with  subject  and  general  pvu-pose  will 

prevaU,  §  219. 
when  a  general  intent  and  a  particular  intent  are  expressed  the  latter 
will  prevail,  §§  153,  158,  159,  167,  216,  222,  231. 
otherwise  if  the  general  act  intended  to  be  tmiversal  and  exclusive, 

§  159. 
where  general  act  required  and  repeals  inconsistent  provisions  it 

repeals  special  acts  on  same  subject,  §  159. 
intention  to  make  unconstitutional  exception  will  not  be  imputed  to 
legislature,  §  159. 
intention  of  a  statute  is  the  law,  §  234 
must  be  embodied  and  expressed  in  the  statute,  §  234. 
a  statute  is  hence  a  written  law,  §  234 

it  is  there  to  be  first  sought  for  without  other  aids,  §§  236,  237. 
aU  rules  of  interpretation  are  intended  to  reach  it,  §  234. 
where  it  is  plain  and  obvious  no  interpretation  necessary,  §  234. 
rules  of  construction  are  only  important  as  tliey  serve  to  ascertain  the 
intention,  §§  234  235. 
and  this  is  true  as  to  aU  statutes,  §  234. 
if  plainly  expressed  in  the  statutes  it  cannot  be  controlled  by  anything 

extraneous,  §  237. 
whole  statute  to  be  read  to  determine  it,  §  239. 


INDEX.  657 

INTENTION  (continued)  — 

then  the  simple  duty  of  the  courts  to  enforce  the  law  according  to  its 

terms,  §§  237,  238. 
cases  cannot  be  included  or  excluded  merely  because  there  is  no  reason 

against  it,  §  237. 
if  dLffer(?ut  f lom  the  literal  import,  it  should  prevail,  ^g  237,  245. 
question  for  the  court  is,  what  did  the  legislature  really  intend,  §  238. 
if  it  is  plain  from  the  statute  itself,  and  others  in  pari  materia,  no  dif- 
ferent intent  can  be  imputed  to  serve  a  supposed  policy  or  maintain 
its  validity,  g  23a 
one  part  to  be  construed  with  another,  §  239. 
the  general  intent  the  key  to  that  of  all  the  parts,  §  240. 

it  is  control Img  a.s  to  minor  parts,  §§  241,  245. 
declaration  of,  in  an  act  controlling,  §  246. 

ascertained  from  whole  act,  a  guide  in  reading  particular  words  and  ex- 
pressions, g§  241-246. 
may  exclude  cases  within  the  letter,  §  243. 
in  following  the,  where  reason  ceases,  the  law  ceases,  §  243. 
notice  not  necessary  to  officer  of  his  own  act,  §  243. 
possession  of  game  during  period  prohibited  when  consistent  with 

innocence,  §  243. 
requirement  of  notice  of  things  done,  may  require  notice  of  non- 
action, g  243. 
general  exemption  from  taxation  may  be  confined  to  taxation  for 

revenue,  §  243. 
new  condition  may  be  supplied  by  implication,  g  244 
or  new  exceptions,  ^  246. 
inaccuracies  of  name  may  be  corrected,  §  244 
literal  sense  of  words  departed  from,  §§  245,  246,  251, 259. 
"  city  "  may  include  incorporated  town,  §  245, 
limited  words  or  expressions  may  be  expanded,  §  245. 

or  general  words  restricted,  §  246, 
seemingly  incongruous  provisions  brought  to  harmonize,  §  245. 
resti'ictive  clauses  in  one  section  may  be  amended  by  implicatioD 
in  others,  §  246. 
context  will  not  modify  natural  effect  of  words  contrary  to,  §  246. 
words  and  phrases  to  be  construed  according  to,  §  247. 
"immediate  danger"  qualified  to  effectuate,  §  251. 

"  and  "  and  "  or  "  used  indifferently  and  constnied  according  to,  §  252. 
presumption  of,  where  legislatm-e  enact  a  statute  without  change  after 
it  has  received,  consti'uction,  §  255. 
when  re-enacted  with  change,  §§  255,  256, 
will  control  grammatical  sense,  §  258. 
may  be  effectuated  by  corx-ection  of  mistakes  by  context,  §  260. 

omitted  words  may  be  supplied,  wrong  word  changed  tj  correct 

one,  and  meaningless  disregarded,  §  260. 
by  transposing  clauses,  §  260. 
must  be  clear  to  correct  words  of  statute,  §  260L 
42 


GbS  INDEX. 

INTENTION  (continued)  — 

controls  the  rule  from  associated  words  and  maxim  of  ejusdem  generis, 

§§  267,  279,  280. 
proof  of  exti-insic  facts  supposed  to  have  been  known  to  legislators  and 

to  have  influenced  their  intentions,  §  298. 
sti-ict  construction  not  to  defeat,  §g  348-350,  356. 
case  must  be  within,  and  also  letter  of  penal  statute,  §§  349,  350. 
to  bring  case  witliin  penal  statute  there  should  be  a  criminal  intention, 

§§  354,  355,  356. 
Uberally  inferred  in  construing  remedial  statutes,  §  409. 
cases  not  within,  excluded,  §  411. 
how  to  be  learned,  §  412. 
no  set  form  to  express,  §  416. 

words  controlled  by,  when  manifest,  §§  416,  417,  423. 
how  it  conti-ols  in  construction  of  statute  of  limitations,  §§  424-426. 

of  statute  of  frauds,  §  428. 
cases  not  within,  excluded  though  within  the  letter  of  statute,  §  428. 
municipal  corporations  excluded  from  general  law  of  garnishment, 
§  428. 
words  may  be  restrained  to  brmg  operation  of  statute  within,  §§  428* 

429,  436. 
whether  statute  directory  or  mandatoiy  decided  upon,  §  447. 
where  doubtful,  statute  construed  to  operate  prospectively,  §§  463,  434. 

INTERPRETATION  (see  Construction)  — 
compared  with  construction,  §  236. 

INTERPRETATION  CLAUSE  — 

introduced  to  remove  possible  obscurity,  §  216. 

binding,  authoritative,  §§  229,  231,  246. 

criticisms  of,  §  230. 

general  and  special  provisions  of  the  nature  of,  §  231. 

latter  of  most  weight,  §  231. 
enactment  based  on  misconception  of  what  the  law  is,  does  not  of  itself 

change  the  law,  §  231. 
general  statutory  definition  will  apply  only  where  no  diif  erent  intention 

appears,  §  331. 
when  authoritative,  §  402. 

not  binding  on  the  courts,  §  402. 
when  legislative  consti-uction  high  evidence  of  intention,  §  402. 
to  what  applicable,  §  402. 
when  strictly  construed,  §  402. 
regarded  with  disfavor  in  England,  §  403. 

not  always  regarded  as  containing  definitions,  §  404 
but  provisions  by  way  of  extension,  §  404. 
will  still  include  its  proper  sense,  §  404. 
not  generally  absolute,  but  only  applicable  when  not  inconsistent  with 

intent,  §  405. 
when  penal  acts  declared  remedial,  §  445. 


INDEX.  659 

INTOXICATING  LIQUORS  — 

nature  of  judicially  noticed,  §  303. 

INTOXICATION  — 

statute  allowing  recovery  of  damages  for,  against  vendors  of  liquors 
and  of  renters,  §  373. 
held  remedial,  §§  373-377. 
actual  damage  necessaiy,  §  374. 

injury  to  person  must  be  physical,  §  374. 
exemplary  allowed  only  where  there  are  aggravations,  §  374 
exception  in  Ohio,  §  374. 
consequential  injuries  recoverable,  §  374. 
construction  as  to  elements  of  damage,  §§  374,  376. 
form  of  remedy  and  parties,  §§  376,  377. 

JUDGMENT  — 

statute  providing  for  obtaining,  on  motion  strictly  construed,  g§  393,  398. 
construction  of  remedial  statute  as  to  effect  of  voluntary  discharge  from 

arrest  under,  §  416. 
act  to  prevent  delays  in  obtaining,  remedial,  §  435. 

providing  for  docketing,  how  construed,  §  451. 
JUDICIAL  KNOWLEDGE  — 
of  public  statutes,  §  181. 

of  facts  affecting  them,  §§  181-183,  292-313. 
of  the  common  law,  §  184 

of  other  states,  §  184. 
of  state  statutes  by  federal  courts,  §  185. 
of  public  law,  §§  293,  294 

commencement,  expiration  and  repeal  of  statutes  and  their  con- 
struction, §  293. 

of  any  decision  that  they  are  unconstitutional,  §  393. 

includes  notice  of  all  facts  and  proceedings  which  concern  their 
validity  and  interpretation,  §  294. 

may  resort  to  histoiy  to  do  away  with  obscurity,  §  294 
of  the  common  law  and  the  fundamental  law,  §  295. 
the  law  of  nations,  §  295. 
the  law  merchant,  §  295. 
of  the  antecedent  laws,  §  295. 

of  matters  so  notorious  as  to  be  imiversally  known,  §  293. 
matters  within  the  cognizance  of  the  particular  court,  §  293. 
when  acts  done  in  pursuance  of  foreign  law  made  effectual  by  domestic, 

the  former  noticed,  g  293. 
of  territorial  divisions  of  state,  §  295, 
of  coi-porations  and  institutions  established  by  law,  §  295. 
of  state  laws  by  federal  courts,  i^  293. 
treaties,  law  of  the  land  and  judicially  noticed,  §  293. 
of  general  customs,  §  295. 
of  meaning  of  C.  O.  D.,  §  295. 
busine^  of  mercantile  agencies,  §  396. 


660  INDEX. 

JUDICIAL  KNOWLEDGE  (continued)  — 
commercial  usages  as  to  holidays,  §  296. 
customs  of  the  road,  §  296. 

of  the  sea,  §  296. 
private  statutes  and  by-laws  not  noticed,  §  296. 

nor  municipal  ordinances,  §  296. 
of  existence  of  foreign  nations,  §  297. 

their  national  emblems  and  flags  and  seals,  §  297. 
that  they  have  judicial  tiibunals,  etc.,  §  297. 

and  general  nature  of  their  jurisprudence,  §  297. 
supreme    court  maintained  its    appellate  jiu-isdiction    depending    on 
amount  by  taking  notice  of  vast  mining  operations  on  the  public 
lands,  §  298. 
courts  take  notice  of  the  result  of  an  official  census,  §  298. 
of  derivation  of  land  titles,  §  298. 
that  a  portion  of  state  was  in.  insuiTCction,  §  298. 
and  under  whose  control,  §  298. 
that  in  consequence  certain  courts  closed,  §  298. 
civil  law  suspended,  §  298. 
what  law  prevailed,  §  298. 
that  the  Confederate  currency  imposed  by  force,  and  at  discount, 
§298. 
of  the  general  facts  relating  to  its  emission,  etc.,  §  306. 
the  accession  of  persons  to  office  and  the  tenure  under  constitution 

and  laws,  §  298. 
the  geography  and  topography  of  state,  §§  298,  304,  305. 
the  navigability  of  large  rivers,  §  303. 
the  history  of  state  as  to  facts  of  general  interest,  §  298. 
of  the  boundaries  of  state,  §  298. 

its  civU  divisions  created  by  law,  §  298. 
of  notorious  surveys,  streets,  areas  and  lines,  §  298. 
of  terms  of  courts  fixed  by  law,  §  298. 
of  their  owti  officers,  and  records,  §  299. 

not  of  contents  of  record  La  another  case,  §  299. 
garnishment  not  another  case,  §  299. 
of  facts  in  general,  §§  301-306. 
of  the  character  of  a  trade  as  to  being  a  nuisance,  §  301. 

of  gift  enterprises,  §  303. 
of  the  seasons,  §  302. 
calendar,  §  302. 
that  a  patent  was  void  for  want  of  novelty,  §  304 
of  the  course  of  natui'e,  §§  302,  305. 
moi-tuary  tables  based  on,  §  302. 
of  the  nature  of  liquors,  §  303. 
that  coal  oil  inflammable,  §  305. 
of  the  course  of  agricultiu-e,  §  302. 

when  particular  crops  mature,  §  302. 
not  of  vicissitudes  of  climate,  §  302. 
of  what  is  generally  known  in  their  jurisdiction,  §  304 


INDEX.  661 

JUDICIAL  KNOWLEDGE  (continued)  — 

of  tlie  art  of  pliotogi'aphy,  §  305. 

of  pliilosopliic  and  scientific  facts  and  principles,  §  305. 

that  work  of  barber  not  one  of  necessity  on  Sunday,  §  306. 

of  tlie  nature  of  lotteries,  of  billiard  tables,  §  306. 

of  the  character  of  the  circulating  medium  and  meaning  of  popular 
language  concern  iug  it,  ^5  300. 

of  the  changes  in  the  com-se  of  business  and  of  new  processes  to  facili- 
tate it,  g  306. 

of  railroad  superintendent's  general  authority,  §  306. 

of  the  customary  price  of  ordinaiy  labor,  §  306. 

of  meaning  of  well-known  abbreviations,  §  306. 

that  free  masonry  a  charitable  institution,  §  306. 

the  usual  duration  of  voyage  across  the  Atlantic,  §  306. 

the  ordinary  incidents  of  railway  travel,  §  306. 

that  the  language  of  all  countries  fluctuates,  §  306. 

the  distance  between  well-knoA\Ti  cities,  §  306. 

the  speed  of  railway  ti'avel  between  theno,  §  30ft, 

particular  facts  of  state  history,  §  298. 

JUDICIAL  POWER  — 

what  its  exercise  includes,  §  5. 
authority  in  exposition  of  law,  §  5. 
nature  of,  §  6. 
determines  what  the  law  is,  §  11. 

and  kind  and  measure  of  redi'ess,  §  11. 

JUDICIARY  — 

its  function  to  expoimd  the  laws,  §  3. 
what  measure  of  judicial  power  vested  in,  §  5. 
within  province  of,  to  decide  as  to  vaUdity  of  statutes,  §  41. 
JURISDICTION  — 

may  be  taken  away  by  repeal  of  statutes  conferring,  §  165. 

effect  of,  §  165. 
effect  of  abolisliing  and  restoring,  on  pending  cases,  §  165. 
special,  must  be  confined  to  enumerated  subjects,  §  380. 

and  exercised  according  to  statute,  g§  394^396. 
over  waters,  with  reference  to  low-tide  line,  §  386. 

towns  may  have  co-extensive,  §  386. 
statutory,  conferred  on  coiu-ts,  how  construed,  §  391. 

methods  of  obtaining,  strictly  constinied,  §  394. 
of  com-ts,  not  given  or  lost  by  miplication,  §  395. 

not  taken  away  by  grant  of  similar  to  another  tribimal,  §§  395-397. 

granted  by  constitution,  cannot  be  abridged  or  altered  by  legisla- 
tion, §  397. 

repeal  of  statute  giving  jui'isdiction  takes  away  power  to  pixx^eed  in 
pending  eases,  §  464. 
statutoiy,  confined  to  enumerated  cases,  §  343. 
when  general,  §  343. 
granted  by  constitutioi],  un:Uterable  by  legislature,  §  397. 


662  INDEX, 

JURISDICTION  (continued)  — 

statutory,  act  conferring  construed  strictly  as  to  extent,  liberally  as  to 

mode  of  exercise,  §  435. 
of  justices,  as  to  penalty,  §  438. 
divorce,  includes  power  to  grant  alimony,  §  341. 
incidental  po\vei*s  from,  general  and  special,  §§  342,  343. 
statutes  assuming  by  regulating  exercise  of,  confer,  §  343. 
granted  to  a  court,  to  be  exercised  as  such,  §  342. 
statutes  not  presumed  to  intend  to  oust,  of  superior  courts,  §  333. 
a  statute  giving  common  councU  power  to  judge  of  the  election  of  its 

members  does  not  oust  the  jui'isdiction  of  the  coui'ts,  §  384 
depending  on  jimction  of  towns,  §  437. 

JURY  — 

held  to  mean  a  witness  in  a  procedui-e  act,  §  423. 
statutoiy  provisions  as  to  summoning,  du-ectory,  §  449. 
as  to  di-awing,  du-ectoiy,  §  452. 

LAND  GRANTS  — 

for  pubhc  enterprises,  how  constnied,  §  379. 

do  not  include  right  of  pubhc  ferry.  §  379. 
to  ascertain  intent  of,  com-ts  may  consider  condition  of  country  and  the 
purpose  declared  on  face  of,  §  379. 

LANDLORD  AND  TENANT  — 

statute  amending  another  afifording  summary  remedy  between,  liber- 
ally construed,  §  435. 

LAW  MERCHANT  — 

courts  take  notice  of,  §  295. 
LAW  OF  NATIONS  —  ' 

courts  take  notice  of,  §  295. 

LAW  OF  THE  CASE  — 

a  decision  of  the  supreme  court  is  the,  in  subsequent  proceedings,  §  820. 

LAWS  — 

in  case  of  change  of  sovereignty,  §  19. 
of  colonists,  §§  15,  16. 

LAWS  IMPAIRING  OBLIGATION  OF  CONTRACTS  — 
recording  laws  affecting  priority  may  be  passed,  §  474 
contracts  may  be  vahdated  by  subsequent  statute,  §  474. 
corporate  charter  not  subject  to  be  forfeited  by  statute  for  past  acts, 

which  when  done  not  cause,  §  474 
state  contracts  within  constitutional  prohibition,  §  475. 

what  impairment  of  proliibition  prevents,  §  475. 
municipal  power  of  taxation  cannot  be  withdi'awn  to  impair  its  capacitj 

to  pay  debts,  §  475. 
remedy  within  control  of  state,  but  cannot  be  so  changed  as  to  materiallj 
affect  obligation  of  contracts,  §§  476,  477. 
how  greatly  may  remedy  be  changed,  §  478. 
list  of  admissible  changes,  §  476. 


INDEX. 


663 


LAWS  IMPAIRING  OBLIGATION  OF  CONTRACTS  (continued) — 
effect  of  mortgage  cannot  be  changed,  §  477. 

mode  of  redemption  may  not  be  altered,  §  477. 
nor  conditions  of  sale,  §  477. 
how  far  exemptions  allowed,  §^  477,  478. 

legislation  not  permitted  to  utfect  construction  of  existing  contracts, 
g478. 
and  parties  entitled  to  a  remedy  as  efficacious  as  when  the  contract 
was  made,  §  478. 
stay  laws,  §  478. 

change  of  jurisdiction  of  courts  to  adjudge  present  payment  or  collec- 
tion of  debts,  §  478. 
imprisonment  for  debt  may  be  abolished,  §  478. 

preventing  mortgagee  from  taking  possession  before  foreclosure,  §  478. 
shortening  the  time  of  redemption,  §  478. 
suspending  the  right  to  sue  on  the  bond  or  note  until  after  foreclosure, 

§478.. 
prohibited  by  constitution,  §  206, 
laws  affecting  validitj%  construction,  discharge  or  efficient  enforcement, 

gg  471,  474. 
prohibition  applies  to  executed  and  executory  contracts,  §  472. 

to  corporate  charters,  §§  472,  473. 
state  cannot  impair  obligation  of  its  contracts,  §  472. 
statutes  granting  franchises,  bounties,  patents,  copyrights,  etc.,  protected 

against  impairment,  §  473. 
prohibition  does  not  permit  any  degree  of  impairment,  §  474. 
does  not  permit  any  change  of  the  terms,  §  474. 
extends  to  change  of  law  by  judicial  decision,  g  474. 
bankrupt  or  insolvent  law  for  discharge  of  debtor  proliibited,  §  474 

or  discharge  by  part  payment,  §  474. 
laws  of  this  effect  prohibited,  §  463. 
what  laws  come  within  prohibition,  §§  471-479. 

LEGISLATIVE  INTERPRETATION  — 
when  conclusive,  §  307. 
long,  should  be  adhered  to,  §  311. 

LE  IISLATIVE  JOURNALS  — 

not  records  at  common  law,  §  44. 

their  force  as  evidence  to  affect  validity  of  statutes,  §§  30-45. 

records,  when  required  by  the  constitution,  §  44. 

may  be  consulted  for  parliamentary  histoiy  of  an  act,  §  43. 

silence  of  journals  as  to  facts  not  re(iuirod  by  the  constitution  to  be  en- 
tered will  not  affect  statute,  g§  46,  47. 

entries  necessiirj'  to  show  compliance  with  constitution  in  paiticiUars 
requii-ed  by  it  to  be  there  shown,  §  48. 

when  there  is  power  to  dispense  with  readings  on  separate  days  the 
cause  need  not  be  entered  on,  §  47. 
LEGISLATIVE  POWER  — 

cUstinct  from  other  fundamental  powei-s,  §  2. 

of  federal  government,  vested  in  congress,  §  4. 


QQ4:  INDEX. 

LEGISLATIVE  POWER  (contiBued) — 
of  congress,  §  4. 
of  state  legislatures,  §§  4,  6. 
its  sole  function  of  law  making,  §  6. 
nature  of,  §§  6,  8. 
how  it  acts,  §  7. 
scope  of  its  exercise,  §§  7,  8, 11. 
limitations,  §§  10,  11. 
federal  and  state,  g§  4,  21. 
cannot  be  delegated,  §  67. 
exceptions,  §  70. 

what  is  a  delegation  of  legislative  power,  §  69. 
powers  may  be  granted  which  are  gwasi-legislative,  §  68. 
delegation  of,  g§  67-73. 

LEGISLATIVE  PROCEDURE  — 

constitutional  regulations  of,  mandatory,  §§  26,  30,  41,  43,  50,  64,  65,  66. 
bills  must  be  signed  by  presiding  officer.  §  51. 

only  necessary  when  expressly  required,  §  51. 

signatures  of  presiding  officers  not  a  part  of  legislative  process,  §  51. 

pxirpose  of  requu'ing  them,  i^  51. 
when  acts  should  be  approved,  §§  55,  56. 

nature  of  functions  of  executive  on  bUls,  §  55. 

how  a  bill  will  become  a  law  witliout  approval,  §  57. 

computation  of  time  for  tliis  pvuiDose,  §§  57-59,  111,  115. 
how  a  bill  to  be  returned  when  vetoed,  §  59. 
submitting  to  popular  vote  laws  or  questions  relating  thereto,  §§  71-73. 

local  laws  may  be  made  to  depend  on  popular  vote,  §  75. 

LEGISLATIVE  RECORDS  — 

at  common  law,  §§  27,  28,  30. 
conclusive,  g§  27,  30,  40. 

when  legislative  journals  may  be  consulted  to  impeach,  §§  40,  45. 
LEGISLATURE  — 

has  exclusive  power  to  make  laws,  §  2. 

scope  of  its  functions,  §§  7,  10. 

must  be  legal,  §  26. 

is  in  America  a  representative  body,  §  29. 

derives  its  power  from  a  constitution,  §  29. 

compared  with  I^j-itish  parUament,  §  23. 

m  ist  legally  convene,  §  26. 

it  exercises  a  delegated  power,  §  26. 

must  keep  within  i^owei*  granted  as  to  membership,  etc.,  §  26. 

procedure  prescribed  in  constitution  mandatory,  §§  26,  29,  30,  41,  42,  50. 

Limitation  as  to  time  for  introduction  of  bills,  §  26. 
not  to  be  evaded  by  amendments,  §  26. 

common-law  record  of  legislation,  §  27. 

legislative  records  im^der  constitutions,  g§  30,  45. 

cannot  authoritatively  declare  what  the  law  is  or  has  been,  §  229. 

a  legislative  oonstruction  of  a  statute  has  weight,  g  22'J. 


INDEX.  CG5 

LEGISLATURE  (continued)  — 

its  authority  is  exclusively  to  declare  what  it  shall  be  in  the  future^ 

i^  229. 
presumed  to  know  existing  statutes,  §§  226,  287. 

LEVY  — 

statutory  provisions  as  to  making,  before  witnesses  not  imperative, 
§  452. 

LIABILITY  — 

statutes  creating  or  increasing,  strictly  constiiied,  §  371. 

LIBERAL  CONSTRUCTION  — 

to  what  statutes  applied,  §§  408,  409. 

applied  to  remedial  and  other  statutes  enacted  pro  bono  publico,  vmless 

prevented  by  some  paramount  nile  of  construction,  §§  410,  413. 
applied  to  carry  out  intention,  §  409. 

intention  Uberally  infeiTed  by,  §  409. 
what  is,  and  illustrations,  §§  415-433. 

consists  in  giving  words  such  meaning  as  renders  statute  effectual 
to  carry  out  intention,  §  416. 
of  rederaptiou  laws,  §  420. 
exemptions,  §§  420-422. 
of  word  "  jury  "  in  procedure  act,  §  423. 
of  statute  of  mortmain,  §  423. 
of  testamentary  bond,  ^  423. 
of  statute  of  Umitations,  §§  424r-426. 

when  action  abated  by  death  or  marriage,  §  424 
of  the  statute  of  frauds  to  effectuate  its  pvirpose,  §  427. 
by,  cases  excluded  though  within  the  letter,  if  not  witliin  the  intention, 

§§  428,  429. 
of  act  to  prevent  delay  in  obtiuniug  judgment,  §  435. 
pvu-pose  of,  §  430. 

of  statutes  relative  to  arbiti'ations,  §  439. 
of  statutes  giving  right  of  appeal,  §  440. 
of  acts  extending  elective  franchise,  §  441. 

taking  away  penalties,  f?  441. 

providing  compensation,  §  441. 
provision  m  favor  of  tax-payers,  etc.,  §  441. 

for  protection  of  officers,  §  442, 
married  women,  §  442. 
of  acts  for  accomplislunent  of  public  objects,  g  443. 

for  prevention  of  fraud,  §  443. 

LICENSE  — 

pui-suing  profession  without  requked  license  vitiates  claim  for  services, 
§  335. 

LIMITATIONS  — 

defense  of  statute  of,  a  vested  right,  §  480. 

time  occurring  before  passage  of  statute  may  be  adiled  to  time  af  terAvard 
to  make  up  period,  g  482. 


GGG  INDEX. 

LBIITATIONS  (continued)  — 

under  successive,  j)art  of  time  iinder  one  may  be  added  to  period  under 

another,  §  151. 
general  provision  that  statute  of  shall  run  against  the  state  vpill  not  be 

construed  reti'ospectively,  §  464. 
effect  of  title  sustained  by  the  bar  where  parties  reside,  §  479. 
statute  of,  will  not  be  construed  to  apply  to  existing  cases,  §  464 
statute  of,  relates  to  remedy  and  not  directly  to  right,  §  479. 

does  not  necessarily  impau-  obhgation  of  contract,  §  479. 
statute  of,  at  place  of  suit  applies,  §  479. 

of  action  against  sheriffs,  etc.,  in  remedial  statute,  how  construed,  §  416. 
statutes  of,  how  constnied,  §§  368, 424,  426. 

where  action  has  abated  by  death  or  marriage,  §  424 
when  statute  has  made  no  exception,  the  coui'ts  can  make  none,  §  427. 

one  recognized  in  case  of  civD.  war,  §  427. 
as  to  new  trials  and  appeals,  §  369. 

LOAN  — 

may  be  construed  in  remedial  statute  to  mean  moneys  voluntarily  ad- 
vanced without  legal  request,  §  420. 

LOCAL  LAWS  (see  Special  Laws)  — 

may  be  made  to  depend  on  popular  vote,  §  75. 

MANDATORY  STATUTES  — 

what  they  are,  §  454. 

where  a  particular  mode  of  doing  an  act  authorized  by  statute  is  pointed 
out  it  must  be  puioued,  §  454. 

enabling  statutes  are,  §  454 

prescribed  procedure  for  evercise  of  newly  granted  power  mandatoiy, 
g454 

laws  protecting  tax-payers  are  such,  §  454. 

provision  requiring  certain  words  to  be  inserted  in  venires,  §  455. 
sales  under  execution  to  be  made  at  court-house,  §  454 

statutory  requh-ement  can  never  be  dispensed  with  as  dii'ectory  where 
departm'e  from  can  work  injuiy,  §  455. 

acts  such,  when  of  the  essence,  ^  455. 

when  mandatory  as  to  time,  §  456. 

statutory  proceedings  governed  by  rule  of,  §  456. 

letting  work  by  competitive  bidding  under  mimicipal  charter,  §  457. 

statutes  for  exercise  of  power  of  eminent  domain,  §  457. 

prescribing  mode  of  adopting  resolutions  for  certain  pm-poses  by  com- 
mon council,  §  457. 

regulations  as  to  new  right,  privilege  or  immunity.  §  458. 

relating  to  sealed  bids,  §  458. 

regulating  municipal  proceedings  to  contract  debts,  §  459. 

statute  of  frauds,  §  459. 

where  intention  would  otherwise  be  defeated,  statutes  are  mandatory, 
§  459. 

relating  to  building  material  for  protection  against  fire,  §  459. 


INDEX. 


GOT 


MANDATORY  STATUTES  (continued)  — 

for  certain  mode  of  making  assignments  for  benefit  of  creditors  to 

prevent  fraud,  §  459. 
when  permissive  in  form,  §§  460^63. 

MARGINAL  NOTES  — 

effect  of,  in  construction,  §  226. 

MARRIAGE  — 

under  proliibited  conditions  may  not  constitute  bigamy  where  there  is 

no  criminal  purpose,  §  355. 
statutes  abolisiiing  any  of  the  incidents  of,  strictly  construed,  §  400. 
how  statute  of  limitations  construed  as  appUed  to  suits  abated  by,  §  424. 

LIARRIED  WOMEN  — 

enlargement  of  then-  rights  implies  abolition  of  estate  by  curtesy,  §  338. 
removes  disability  under  statute  of  limitations,  §  338. 
right  of  to  own  and  enjoy  merchandise  impUes  right  to  ti-ade,  g  338. 
to  convey  land  without  private  examination,  §  338. 
then-  power  to  ti-ade  implies  power  to  borrow  money,  §  338. 

that  she  borrows  on  her  separate  estate,  §  338. 
when  statute  specifies  cases  m  wliich  they  may  sue,  others  excluded, 

§337. 
statutes  increasmg  powers  of,  strictly  construed,  §  400. 

have  been  held  remedial  and  to  be  hberally  construed  to  effect  ui- 
tent,  §  400. 
a  statute  authori2;ing  them  to  have,  hold  and  possess  property  will  not 

authorize  them  to  make  sales  and  pui-chases,  g  431. 
acts  for  protection  of,  hberally  construed,  §  443. 

statutes  prescribing  mode  of  exercising  or  enforcing  new  rights  manda- 
tory, §  458. 
exemption  from  statute  of  limitation  gives  them  control  of  separate 

property,  §  146. 
acts  giving  them  such  control  do  not  abolish  title  by  entureties.  §  150. 
statute  denymg  them  right  to  dispose  of  land  not  unpliedly  repealed  by 
act  entitlmg  them  to  receive  and  hold  propeiiy,  §  149. 

aiAY  — 

when  mandatory,  ^§  460-463. 

when  "may ''  and  "  shaU "  used  in  same  provision,  §  463. 

MEMBERSHIP  OF  LEGISLATURE  — 

constitutional  limit  imperative,  §  26. 
MERITS  OF  LEGAL  CONTROVERSY  — 
what  law  governs,  §  11. 
plaintiff  to  have  title  at  commencement  of  action,  §  148. 

MESNE  PROFITS  — 

act  for  set-off  of  value  of  uuprovements  against,  g  437. 

MISCHIEF  — 

intended  to  be  cured  considered  in  construction,  §  393. 

UberiU  construction  of  remedial  statutes  to  suppress,  §§  409,  410,  430. 


668  INDEX. 

MISTAKES  — 

may  be  corrected  by  construction,  §  260. 

MONTESQUIEU,  BARON  — 

his  view  of  the  union  of  the  fundamental  powers,  §  3. 

MONTH  — 

not  a  technical  word,  and  understood  generally  as  a  calendar,  §  253. 
otherwise  in  England  and  New  York,  §  253. 

MORTGAGE  — 

subsequent  legislation  restrained  affecting  sale,  redemption,  etc.,  by  pro- 
hibition of  laws  impah'ing  obligation  of  contx'acts,  §  477. 
also  to  prevent  mortgagee  from  taking  possession  vmtil  after  fore- 
closure, §  478. 
subsequent  statute  suspending  the  right  to  sue  on  the  note  or  bond  until 
after  foreclosure  impairs  tlae  obligation,  §  478. 
so  a  statute  shortening  the  time  of  redemption,  §  478. 

MOTIVES  — 

no  issue  allowable  as  to  legislature,  §  330. 

MUNICIPAL  BONDS  — 

how  protected  by  constitutional  prohibition  of  laws  impaning  obUgation 
of  contracts,  §g  474,  475. 
MUNICIPAL  CORPORATIONS  — 

tmder  legislative  conti'ol,  §  473. 

theu'  charters  not  contracts,  §  473. 

taxing  power  of,  cannot  be  withdrawn  so  as  to  impair  the  means  of 
paying  their  debts,  §  475. 

contract  which  is  ultra  vires  may  be  made  good  by  curative  act,  §  483. 

provision  of  charter  that  work  be  let  to  lowest  bidder  imiDerative,  §  457. 

provisions  mandatory  requu'ing  particular  proceedings  to  contract  debt, 
§459. 

not  witliin  law  of  garnishment,  §  428. 
MUNICIPAL  PRACTICE  — 

under  indefinite  jjro visions  of  charter  respected,  §  311. 

NEGATIVE  STATUTE  — 

what  is,  §g  202.  203. 
NEGATIVE  WORDS  — 

make  a  statute  mandatory,  §§  447,  454. 

jjrovisions  granting  new  power  prescribing  mode  of  exercise,  imply 
them,  ^  454. 

statutes  regulating  v^ith,  mandatory,  §  459. 
NEW  TRIALS  — 

statutes  as  to  notice  to  give  effect  to  limitations,  §  369. 
NEXT  OF  KIN  — 

statutes  giving  action  to,  for  causing  death,  §  371. 

illegitimate  child  not  included  in  England,  §  371. 
otherwise  in  this  country,  §  371. 

statutes  allowing  damages  to,  resulting  from  intoxication,  g§  373-376. 


INDEX.  669 

NON-USER  — 

will  not  repeal  a  statute,  §  137. 

NOTICE  — 

constiaied  to  be  written,  when,  g  245. 

when  made  necessary  to  create  a  duty  to  repair,  not  necessary  to  officer 

who  caused  defect,  §  243. 
when  required  of  affirmative  action,  may  also  require  of  non-action, 

§243. 
if  required  to  impose  a  duty,  should  be  actual  notice,  §  354. 
requirement  of,  as  to  limitations  for  new  trial  or  appeal,  §  369. 
required  by  letter  of  statute,  may  be  dispensed  with  when  not  withi  n 

intention,  §  429. 
preliminary,  when  required  to  persons  to  be  affected  by  proceedings, 

§457. 
publication  of,  mandatory  in  respect  to  redemption,  §  457. 

OBJECT  — 

of  a  statute,  when  plain,  controls  effect  of  particular  words  and  expres- 
sions, g§  241-246,  273. 
of  statute,  may  be  considered  for  construction,  §  393. 

OFFICE  — 

com-ts  take  notice  of  accession  of  persons  to,  and  their  tenure  under  the 

constitution  and  laws,  §  298. 
a  statute  will  not  be  given  a  retroactive  effect  to  take  away  an  office, 
§464. 
wiU  not  apply  to  incumbents  to  exclude  on  account  of  advanced 
age,  §  464. 
what  is  the  sale  of,  §  429. 

when  immemorial  custom  will  make  an  exception,  §  429. 
not  held  by  contract,  §  473. 
subject  to  legislative  conti'ol,  g  473. 
salary  of,  may  be  increased  or  diminished,  §  473. 

OFFICER  — 

not  one  who  has  gone  out  of  office,  §  358. 

constiTiction  of  remedial  act  to  prevent  certain,  from  being  interested, 
§444. 

OFFICERS  — 

statutes  impose  duty  on,  by  words  importing  power  and  authority,  or 

permission,  §§  460-462^ 
acts  for  protection  of,  liberally  construed,  §  442. 
construction  of  doubtful  statutes  relating  to  compensation  of,  §  419. 

OFFICIAL  ACTS  — 

statutory  provisions  concerniug,  directory  as  to  time,  §§  448-450. 

OFFICIAL  BONDS  — 

construction  of  remedial  statute  relatiN-e  to  actions  for  breach  of,  §  418. 
statutory  requirements  to  facilitate  proof  of  execution  of,  how  construed, 

§429. 
good,  tliough  not  executed  according  to  dii^ections  of  statute,  §  453. 


670  INDEX. 

OFFICIAL  USAGE  — 

effect  of,  in  construction  of  statute,  §  309. 

«0R" AND"AND"— 
const^ued  as  if  used  accurately  if  according  to  intent,  §  253. 
may  be  understood  as  used  indifferently  if  intent  require  it,  §  252. 

ORDINANCE  — 
definition,  §  61. 
municipal,  not  noticed  by  courts,  §  296. 

ORPHAN  — 

may  be  construed  in  remedial  statute  by  context  and  manifest  intent  to 
mean  infant  with  living  parents,  §  420, 

PALEY,  DR.— 

his  views  relative  to  separation  of  the  legislative  and  judicial  charac- 
ters, §  2. 

PARI  MATERIA— 

when  statutes  are  in  such  relation,  §§  283-288. 

general  words  in  a  later  law  often  qualified  by  previous  acts  on  same 

subject,  §  284. 
new  subjects  introduced  by  general  words  wiU  faU  into   established 

classifications,  §§  284,  287. 
homestead  and  exemptions  are  in,  with  dower  laws,  §  284. 
law  for  attachments  against  water-craft  in,  with  general  attachment  law, 

§284. 
"  any  person  "  in  a  later  statute  in,  construed  to  harmonize  with  earlier 

one  requiring  certain  qualifications,  §  285. 
being  in,  does  not  warrant  disregard  of  conflict  in  the  later  act,  §  286. 
when  statutes  not  in,  §  286. 

act  in  relation  to  confinement  of  stock  not  in,  with  provisions  as  to 
speed  of  railroad  trains,  §  286. 
regard  must  be  had  to  all  parts  of  statutes  in,  §  287. 
statutes  in,  construed  as  a  connected  whole,  §  288. 
a  code  relating  to  one  subject  governed  by  one  spnit  and  policy,  §  288. 
PARLIAMENTARY    GOVERNMENT    IN    THE    BRITISH  COLONIES, 

§§  17,  18. 
PARLIAMENTARY  PROCEDURE  (§30)  — 

constitutional  regulations  mandatory,  §§  26,  41,  42. 

PASSENGERS  — 

statutes  depriving  them  of  compensation  for  injuries  received  while 
riding  on  platform,  §  372. 

PENAL  DAMAGES  — 

given  to  injured  party  are  intended  to  be  part  of  his  indemnity,  §  360. 

are  assignable,  §  360. 
action  for,  not  a  criminal  action  and  has  none  of  its  incidents,  §  360. 
PENAL  LAWS  — 

when  declared  by  same  to  be  remedial  wiU  not  be  strictly  construed, 
§445. 


INDEX.  G7i 

PENAL  LAWS  (continued)  — 
what  arc  such,  §  208. 
construed  strictly,  §  208. 

statutes  may  be  penal  in  part  and  remedial  in  part,  §  208. 
construed  strictly  agaiubt  accused  and  favorably  for  him,  §  208. 
include  not  only  such  as  provide  for  pimishmeuts  pursuant  to  state  prose- 
cutions, but  all  punitive  statutes,  ^  3o8. 
and  those  i)rescribing  punitive  compensation  to  injured  party,  §  358. 
those  which  impose  a  burden  or  take  away  any  right  or  benefit  of 
injured  party,  §  358. 
making  tender  of  certain  bills  a  bar  to  a  demand,  §  358. 
though  beneficial  not  to  be  construed  liberally,  g§  358,  359. 
acts  penal  and  remedial,  how  construed,  §§  359,  360. 
revenue  law-s  held  not  to  be,  §  361. 

to  be  strictly  construed  according  to  severity  of  penalty,  §  347. 
should  be  so  construed  as  to  carry  out  the  obvious  intention,  §§  354,  356. 
words  in,  not  to  have  narrowest  interpretation,  §  357. 
what  statutes  are  penal,  §  358. 
must  exist  at  the  time  of  conviction,  §  160. 
acts  mitigating  punishment,  §  166. 

repealing  effect  of  statutes  changing  criminal  laws,  §§  142-144. 
repeal  and  re-enactment  in  same  words  a  continuation,  §  143. 
when  part  unconstitutional  and  part  not  so,  §§  170-173. 

PENALTIES  — 

acts  taking  away,  liberally  construed,  §  441. 
when  party  may  have  vested  right  in,  §  166. 
lost  by  repeal  of  statute  before  judgment,  §  166. 

PERMISSIVE  STATUTE  (§205)  — 
when  mandatory,  §§  460,  462. 

as  to  persons  having  right  to  invoke  permissive  provisions  imperative, 
§462. 

PLACE  OF  TRIAL  (see  Procedure;  — 

construction  of  act  when  offense  committed  on  board  a  boat,  §  438. 

POLICE  — 

statutes  extending,  control  over  private  property  or  restraining  use.  of. 

sti'ictly  construed,  §  367. 
never  implied  that  the  government  has  surrendered  the  police  power, 

§  378. 

POLICY  — 

of  government,  not  safe  rule  for  construction,  §  407. 

POWER  — 

the  legislative  a  distinct,  §  2. 

statutory,  lost  by  repeal  of  statute,  §  165. 

when  jurisdiction  of  court  prohibited  pending  causes  fall,  §  165. 

statutorj',  stiictly  construed,  g§  378,  397. 

when  mandator}',  though  permissive  in  form,  §§  460-462. 


672  INDEX-. 

POWER  (continued)  — 

of  sheriff  to  sell  personal  property  includes  right  to  take  possession, 
§343. 

to  create  municipal  debt  includes  power  to  levy  tax  to  pay  it,  §  343. 

to  examine  witnesses  includes  that  to  subpoena  them,  §  841. 

those  incidental  granted  with  principal,  §  344. 

statutes  granting,  strictly  construed,  §  390. 

granted  to  several  all  must  act  §  390. 

of  officers  in  levying  taxes  and  selling  property  for  non-payment,  strictly 
construed,  g§  361-366,  390. 
and  to  be  sti-ictly  foUowed,  §  390. 
power  to  sell  in  such  acts  does  not  include  power  to  convey,  §  390. 

given  to  a  city  to  open  and  widen  sti-eets,  but  pz'ocedure  only  for  lay- 
ing out,  is  inoperative  as  to  widening,  §  390. 

given  to  freeholders  to  make  prudential  rules  for  improving  their  com- 
mon lands  does  not  include  imposing  penalties  on  sti'angers,  §  390. 

of  summaiy  foreclosm-e  by  advertisement,  §  390. 

to  towns  to  make  donations  to  railroads,  etc.,  not  invalid  because  means 
of  determining  amovmt,  etc,  wanting,  §  390. 
such  construction  to  be  given  as  wiU  answer  intention,  §  390. 

gi'ant  of,  generally  impUes  reasonable  means  for  exercise  of,  §  390. 

act  conferring  powers  recited  in  former  act  construed  as  embracing 
them,  §  390. 

when  gi-anted  with  reference  to  another  act  for  definition,  only  includes 
the  general  power  there  recited,  §  390. 

special,  conferred  on  a  court,  sti'ictly  construed,  §  391. 

when  to  be  exercised  according  to  existing  law,  §  399. 

statutes  granting,  and  prescribing  how  it  is  to  be  exercised,  exclude 
any  other  mode,  §  454, 

afl&rmative  words  in  such  case  imply  a  negative,  §  454 

negative  words  in  such  case  cannot  be  directory,  §  454. 

new  grant  of,  by  exercise  of  which  one  may  be  divested  of  his  property, 
strictly  construed,  §  454. 

to  affect  property,  must  be  exercised  in  prescribed  manner,  §  455. 

special,  to  be  exercised  by  corporations,  courts  and  officers  substantially 
according  to  statute,  §  456. 

words  importing,  and  authority,  when  imperative,  §  456. 

PRACTICAL  CONSTRrCTION  — 
not  hghtly  questioned,  §§  309,  311. 
effect  of,  depends  on  long  continuance,  §  812. 
only  the  interpreter  of  doubtful  statute,  §  312. 
the  length  of  time  required  to  give  strength  to,  §  313. 

PREAMBLE  -- 
what  is,  §  212. 

value  of,  for  construction,  §§  212,  213,  247. 
not  part  of  law,  §  212. 
true  office  of,  §  212. 


INDEX.  CT3 


PRECEPTIVE  STATUTE,  §  205. 


PRESUMPTIONS  — 

that  IVn-oign  law  is  the  same  as  that  where  the  court  sits,  §  184 
none  that  the  goveranient  has  surrendered  any  of  its  fundamental  pow- 
ers, g  378. 
of  principal's  disability  when  deputy  acts,  g  309. 

that  what  is  excluded  from  a  statute  by  an  exception  would  otherwise 
be  within  it,  §  222. 

not  universal,  §  222. 
that  proviso  applies  to  preceding  matter,  §  223. 

this  removed  by  a  different  intention  appearing,  §  223. 
that  legislature  proceeded  with  knowledge  of  existing  laws,  §§  226,  287. 
that  legislatm-e  re-enacting  statutes  intended  to  adopt  construction  they 

have  received,  §  333. 
that  legislature  did  not  intend  any  further  change  in  existing  law  than 
is  expi-essed,  §  333. 

nor  to  violate  fundamental  principles,  §  333. 

or  oust  jurisdiction  of  superior  courts,  §  333. 

nor  to  surrender  public  rights,  §  333. 
that  statutes  are  to  be  consti-ued  by  the  common  law,  §  333. 
that  statutoiy  powers  are  to  be  executed  according  to  common  law, 

§333. 
that  discretionary  power  is  to  be  reasonably  exercised,  §  333. 
are  conclusive  or  rebuttable,  §  330. 
that  statutes  duly  authenticated  are  duly  enacted,  §  830. 

passed  from  good  motives,  §  330. 
that  legislation  is  founded  upon  proper  evidence,  §  331. 
facts  recited  cannot  be  disproved  to  invalidate  a  statute,  §  331. 
presumed  that  the  legislature  have  not  done  a  vain  thing,  §  331. 
that  the  legislature  intends  its  acts  to  be  vahd  and  have  effect,  §  33L 
statutes  presumed  to  be  valid,  §  331. 
that  the  legislature  is  acquainted  with  the  law,  §  333. 

PRINTED  STATUTES  — 

may  be  corrected  by  original  act,  §  40. 

PRIVATE  GRANT  — 

words  of,  taken  most  strongly  against  the  grantor,  §  378. 

PRIVATE  STATUTES  — 
definition,  §  194 
not  judicially  noticed,  §  296. 

PRIVILEGE  — 

pubUc  grants  of,  strictly  construed,  §  378. 

statutes  conferring  private,  should  not  be  so  construed  as  to  work  public 
mischief,  §  386. 

PROCEDURE  — 

change  of,  after  commission  of  crime,  may  come  within  prohibition  of 
ex  post  facto  laws,  g  465. 
43 


674:  INDEX. 

PROCEDURE  (continued)  — 

acts  to  improve  procedure  remedial.  §  437. 

giving  right  to  bring  action  against  insurance  company  at  place 
where  is  the  subject  of  insurance,  §  437. 
aQ,t  that  trial  judge  file  charge  to  jury  of  record,  §  487. 
resort  had  to  common  law  for,  where  statute  giving  a  right  or  creating 
an  offense  is  sUent  as  to,  §  396. 
where  statutory  fails,  §§  397,  399. 

PROHIBITION  — 

impUed  from  penalty,  §  835. 

from  proviso  that  provision  not  be  construed  to  permit,  §  343. 

PROHIBITR^E  STATUTE,  §  205. 

PROPERTY  — 

public  grants  of,  strictly  constiiied,  §  378. 

land  grants  by  government  consti'ued  stiictly,  §§  878,  379. 

PROSPECTIVE  STATUTE,  §  206. 

PROVISO  — 

what  is,  §  232. 

introduced  to  qualify  or  restrict  general  language,  §§  216,  223. 
totally  repugnant  to  purview  repeals  it,  §  221. 
repealed  by  statute  which  repeals  the  provision  it  qualifies,  §  222. 
presumption  that  what  is  excluded  from  a  statute  by,  would  otherwise 
be  withki  it,  g  222. 
otherwise  when  introduced  from  abundant  caution,  §  222. 
what  it  applies  to,  §  223. 

does  not  apply  to  another  section,  ixnless  intent  appears,  §  223. 
appUes  to  the  provision  or  clause  inunediately  preceding,  §§  223,  267.  ■ 
if  irrelevant,  has  been  rejected,  §  223. 
sti'ictly  consti'ued,  §  223. 
it  takes  no  case  out  of  enacting  clause  which  does  not  fall  within  its 

terms,  §  223. 
matter  of,  may  tend  to  enlarge  purview,  §  223. 
in  penal  statutes  construed  hberally  for  accused,  §  227. 

PUBLIC  GRANTS  — 

words  of,  consti'ued  most  sti-ictly  against  grantee,  §  378. 
any  ambiguity  in,  operates  in  favor  of  government,  §  378. 
the  presumption  is  against  the  government  having  parted  with  any  of 
its  powers  for  accomplishing  its  ends,  §  378. 
against  its  having  parted  with  any  part  of  its  sovereign  power  of 
legislation,  378. 
or  of  police  or  taxing  power,  §  378. 
or  power  of  eminent  domain,  §  878. 
in  grant  of  land  no  implied  covenant  to  do  any  further  act,  §  878. 
in  grant  of  franchise  t«j  build  a  bridge  or  road,  or  to  establish  a  ferry, 

no  implied  contract  not  to  grant  same  to  others,  §  378. 
of  power  to  incorporate  does  not  include  power  to  take  land  by  devise, 
g  378. 


INDEX.  675 

PUBLIC  GRANTS  (continuo.1)  — 

construction  of  grant  to  city  of  right  to  use  soil  under  road  to  lay  pipes 
to  convey  water,  §  386. 
of  land  bordering  on  tide  water,  §  386. 
PUBLIC  OBJECTS—  • 

liberal  constiuction  of  acts  for  accomplishment  of,  §  443. 
PUBLIC  RIGHTS  — 

not  deemed  relinquished  except  by  plain  words,  §  386. 
not  to  be  prejudiced  by  constiniction  of  statutes  conferring  private  privi- 
lege, §  386. 

PUBLIC  STATUTES  — 

what  are  such,  §§  120, 121,  193,  198. 

a  statute  establisliing  a  municipal  court  is  such,  §§  120,  121. 
PUNCTUATION  — 

effect  of,  in  construction,  §  232. 
PURVIEW  — 

is  the  enacting  part  of  statute,  §  137. 

QUALIFYING  WORDS  AND  PHRASES  — 
to  what  they  refer,  §§  267,  269. 
have  been  applied  to  several  preceding  sections,  §  267. 

REASONABLENESS  — 

has  a  potent  influence  in  construction,  §  333. 
REBELLION  — 

statutes  enacted  by  states  in,  §  20,  note. 
RECORD  — 

remedial  act  that  trial  judge  file  of  record  his  charge,  §  437. 
REDDENDO  SINGULA  SINGULIS  — 

when  general  words  so  construed,  §  283. 
REDEMPTION  — 

right  of,  liberally  consti'ued,  §  420. 

word  "  owner  "  used  in  generic  sense  in  law  of,  §  420. 

cannot  be  annulled  by  legislation,  §  480. 

RE-ENACTMENT  — 

of  statute  which  has  received  construction,  §  255. 
with  change  of  phraseology,  §  256. 
REFERENCE  — 

adoption  of  statute  by  general,  §  257. 

confined  to  matter  immediately  preceding,  g§  357,  359. 

RELATIVE  WORDS  — 

their  apphcation  or  reference,  §§  357,  359,  367. 
REMEDIAL  STATUTES  — 

to  receive  a  liberal  construction,  §§  346,  347. 

may  be  extended  to  cases  clearly  within  mischief,  §  348. 

giving  penalty  to  aggrieved  party  remedial  as  weU  as  penal,  §  359. 


676  IKDEX. 

REMEDIAL  STATUTES  (continued)  — 

when  in  part  penal,  how  constTued,  §§  358-360. 
providing  for  arbiti'ations,  ^  439. 

appeal  or  certiorari,  §  440. 
extending  elective  franchise,  §  441. 
taking  away  penalties,  §  441. 
providing  compensation  to  those  whose  propei-ty  is  compulsorily  taken, 

§441. 
in  favor  of  taxed  persons,  §  441. 

of  those  affected  by  proceedings  in  derogation  of  their  rights,  §  441. 
for  protection  of  officers,  §  442. 

of  married  women,  §  442. 

of  ship-owners,  §  442. 
for  accompUshment  of  important  public  objects,  g  443. 
what  are  such,  §  207. 
liberally  construed,  §  207. 

such  construction  when  precluded.  §  207. 
statutes  may  be  remedial  in  part  and  penal  in  part,  §  208. 
what  are,  for  purpose  of  hberal  constixiction,  §§  408,  412,  434,  445. 
statutes  such,  unless  excluded  by  some  i-ule  of  construction,  §§  410,  412. 
letter  of,  may  be  extended  to  embrace  cases  within  the  mischief,  §  410. 
three  points  to  be  observed  in  construction  of,  §  409. 
intention  of  to  be  carried  out,  §  409. 

more  liberally  inferred  in  constiaiing  such  statutes,  §  409. 
construed  Uberally  to  reach  mischief  and  advance  remedy,  §§  410,  411. 
cases  not  within  intention  excluded,  §  411. 

use  of  particular  words  will  not  be  permitted  to  control  evident  inten- 
tion, §  423. 
what  testamentary  bond  construed  to  include,  §  423. 
construction  of  statute  of  limitations,  §§  424-426. 
act  to  prevent  delays  in  obtaining  judgment,  §  435. 
act  extending  time,  in  excejitional  cases,  for  presenting  claims  against 

decedeufs  estate,  §  436. 
act  for  execution  of  powers  of  will,  by  successor  of  executor,  §  486. 
act  making  void  bequest  to  witness  to  will,  §  436. 
statutes  intended  to  promote  the  convenience  of  suitors,  §  437. 

to  improve  procedure,  §  437. 

or  promote  public  convenience,  §  438. 
provision  that  trial  judge  file  of  record  his  charge  to  jury,  §  437. 
for  set-off  of  value  of  improvements,  §  437. 

act  empowering  court  to  decide  about  costs  on  commissions  de  lunatico, 
§437. 

EEMEDY  — 

may  be  changed  if  right  not  impaired,  §  164 

restored  by  repeal  of  law  prohibiting,  §  164. 

when  affirmative  statute  provides,  where  one  existed  at  common  law, 

§202. 
rule  where  such  statutes  successively  provide,  §  202. 
liberal  construction  given  to  statutes  to  advance,  §  430. 


INDEX.  677 

REMEDY  (continued)  — 

eveiything  may  be  done  consistently  with  any  construction  for  that 

j)iir[)Ose,  >^'  430. 
but  not  where  contrary  intention  clearly  expressed,  §  430. 
statutes  of  limitation  relate  to,  g  47'J. 
no  vested  right  in,  §  482. 

nev,  njmedy  may  be  added  to  or  substituted  for  those  which  exist,  §  482. 
and  applied  to  existing  cases,  §  482. 

subject,  however,  to  a  contrary  intent  appearing,  and  consider- 
ations of  reasonableness,  g  482. 
governed  by  law  of  forum,  g  13. 

given  by  statute,  limited  to  strict  statutory  bounds,  §  392. 
not  to  be  enlarged  by  consti'uction,  §  392. 

only  available  on  statutory  conditions,  §§  392,  393. 
when  new  given,  one  already  existing,  §  399. 

REPEAL  — 

when  added  to  unconstitutional  act,  §  175. 

words  expressing  absolutely  may  be  quaUfied  by  context,  §  242. 

of  law  giving  jurisdiction  takes  away  power  to  proceed  in  pending  cases, 

§464. 
effect  of  repealing  statute  adopted  by  general  reference,  §  257. 
power  of  repeal,  g  136. 
modes  of,  §  137. 

will  take  effect  from  any  subsequent  statute  expressing  intent,  §  137. 
the  word  repeal  not  necessaiy,  §  137. 

repealing  words  may  be  qualified  by  context,  §  242. 
suspension  not  a  repeal,  §  137. 
what  is,  §  137. 

what  are  repealing  statutes,  §  209. 
may  be  express  or  implied,  §  137. 
is  express  when  declared  in  direct  terms,  §  137. 

is  implied  when  there  is  subsequent  repugnant  legislation,  §§  137,  138. 
takes  effect  w-hen  repealing  statute  goes  into  operation,  §  137. 
when  statutes  profess  to  make  a  change  repeal  suggested,  §  137. 
rei)eal  of  aU  laws  within  purview  is  a  repeal  of  all  on  same  subjects, 

§137. 
repugnancy  of  later  statute  causes  repeal,  §  137. 

being  ascertained,  later  act  in  date  or  position  will  prevail,  §§  138, 170, 
repugnancy  in  principle  or  spirit  not  sirfficieut,  §  137. 
of  unconstitutional  provision  has  no  effect,  ^§  137,  147. 
will  not  repeal  private  act,  §  137. 
non-user  or  custom  will  not  repeal,  §  137. 

statute  will  not  cease  on  removal  of  some  of  the  evils  aimed  at,  §  137. 
statutes  may  be  rendered  inoperative  by  repeal  of  fundamental  parts, 

§  137. 
inipUed  repeals  ascertained  as  legislative  intent  is  ascertained  in  other 
cases,  by  construction,  ^138. 
not  favored,  and  only  allowed  to  extent  of  repugnancy,  §  138. 
statutes  not  repugnant  unless  tliey  relate  to  tlie  same  subject,  §§  138, 148. 


678  INDEX. 

REPEAL  (continued)  — 

diflference  in  repealing  effect  between  affirmative  and  negative  statutes, 

§§  138,  139. 
repugnance  of  any  previous  statute  contrary  to  a  negative  statute  read- 
ily seen,  §  139. 
not  so  apparent  in  case  of  affirmative  statutes,  §§  139,  140. 
when  a  statute  gives  an  exclusive  rule  it  implies  a  negative,  §  139. 
when  affirmative  words  imply  a  negative,  §  140. 
new  grant  of  part  of  power  already  possessed  repeals  residue,  §  141. 
repeal  by  changing  criminal  law,  g  142. 
common  law  is  repealed  as  to  a  common  law  oif  ense  when  it  is  defined 

and  enacted  by  statute  which  also  prescribes  the  pvmishment,  §  142. 
change  of  elements  of  an  offense  or  punishment  a  repeal,  §  142. 
creation  by  statute  of  an  offense  consisting  of  some  of  the  elements  of 
an  existing  offense  and  others,  no  repeal  of  the  existing  offense, 
§§  142,  143. 
if  an  offense  identified  by  name  or  otherwise  is  altered  in  degrees  or  inci- 
dents it  is  repealed,  §  143. 
where  a  new  law  covers  whole  subject  of  an  old  one,  adds  new  offenses 

and  prescribes  different  penalties,  it  is  a  repeal,  §  143. 
a  revision  is  an  imphed  repeal,  §  143. 

where  act  does  not  refer  to  old  law,  defines  an  offense  pimishablebyold 
law  and  provides  new  pimishment,  it  does  not  affect  a  past  offense, 
§14a 
no  repeal  where  penalty  reduced  or  place  of  confinement  changed, 

§143. 
granting  a  larger  or  a  different  power  is  a  repeal  of  limitations,  §  145. 
when  exercise  of  new  power  requires  grantee  to  go  beyond  previoiis 

hmits,  §  145. 
where  new  grant  ignores  former  conditions,  §  145. 

radical  change  in  leading  part  of  an  act  will  repeal  inconsistent  pro- 
visions, §  146. 
restriction  on  bottomry  loans  impliedly  removed  on  abohtion  of  monop- 
oly to  which  it  was  subsidiary,  §  146. 
estate  by  curtesy  abolished  by  enlargement  of  rights  of  married  women, 
§  146. 
imphed,  removed  theh  exemption  from  statute  of  limitations,  §  146. 
difference  as  to  miphed  repeal  where  there  is  express  repeal  or  inconsist- 
ent legislation,  §  147. 
no  repeal  by  re-enactment  of  part  of  act  in  another  for  a  different 
scheme,  §  147. 
nor  wiU  suspension  of  latter  suspend  the  other,  §  147. 
statutes  adopted  by  reference  not  repealed  by  repeal  of  statute  adopted, 
§§  147,  159. 
instance  of  appointing  election  on  coimty  seat  question  at  April  elec- 
tion, and  subsequent  change  of  that  election,  §  147. 
presumption  against  imphed  repeal,  and  courts  endeavor  to  harmonize 
statutes,  §§  148-153. 
illustrations,  §§  148-153. 


INDEX.  679 

REPEAL  (continnod)  — 

contiatlictory  act  of  less  scope  will  have  effect  to  impose  a  limitation, 
§150. 
or  exception,  §§  153,  167. 

acts  passed  at  same  session  deemed  less  likely  to  conflict,  §§  151,  153. 

act  imposing  new  regulations  of  existing  duty  ha.s  no  repealing  effect^ 
§  151. 

an  affirmative  act  providing  a  new  procedure,  cumulative,  §j;  150,  151. 

no  repeal  by  passage  of  successive  limitation  laws,  g  151. 

successive  affirmative  acts  relative  to  venue  may  stand  together,  §  151. 

not  sufficient  to  repeal  that  acts  are  different ;  they  must  be  contradict- 
ory, §  152. 

as  act  presumed  to  be  passed  deliberately  and  with  knowledge  of  existing 
laws,  repugnancy  must  be  irreconcilable,  §  152. 

considerations  of  convenience,  justice  and  reasonableness  strong  against 
implied  repeal,  §  152. 

revision  a  repeal,  §  154. 
what  is  revision,  §  154. 

a  new  statute  intended  to  be  exclusive  effects  a  repeal,  §§  152,  153. 

general  laws  will  not  repeal  those  which  are  particular,  ^g  157,  158. 

when  general  laws  recjuii-ed  and  repeal  inconsistent  legislation,  paiiicu- 
lar  or  special  acts  repealed,  §  159. 

what  is  a  later  law  potent  to  repeal,  g  160. 
provision  later  in  position  is  such,  §  160. 

effect  of,  without  a  saving  clause,  §  162. 

indefinitely  suspended  while  the  repealing  statute  in  force,  §  162. 

revival  by  repeal  of  repealing  statute,  §  162. 

inchoate  rights  lost  by  repeal,  §  163. 

otherwise  if  perfected  by  judgment,  §  163. 

rights  arising  on  conti-act,  when  not  affected  by  repeal,  g  164. 

vested  rights  not  affected  by,  g  164. 

causes  of  action  barred  by  statute  of  limitations  not  revived  by  its  re- 
peal, §  164 

repeal  of  statute  after  judgment  will  not  defeat  an  appeal  previously 
taken,  §  164. 

repeal  of  statute  essential  to  a  judgment  after  repeal  requires  reversal, 
g  164. 

repeal  of  statute  prohibiting  remedy  restores  it,  g  164. 

prohibiting  defense  of  usury,  repeals  law  of  usury,  g  164. 

powei-s  derived  wholly  from  statute  extinguished  by  its  repeal,  §  165w 

proceechngs  in  progress  at  time  of  repeal  ended,  g  165. 

effect  of,  on  penalty  or  forfeiture,  g  166. 

effect  of,  pending  appeal,  g§  164-166. 

operates  as  a  pardon,  g  166. 

acts  mitigating  punishment,  §  166. 
see  Saving  Clause. 

where  is  no  express,  none  is  presumed  to  be  intended,  g  321. 

not  presumed  to  change  the  law  or  existing  iustitiitious,  systems  or  poli- 
cies more  than  the  terms  of  statute  require,  g  321. 


680  ESTDEX. 

EEQUIEED  READINGS  OF  BILLS  — 

purpose  of,  §  49. 

actual,  required,  §  250. 

amendments  do  not  require  same  readings  as  bills,  §  49. 

does  not  extend  to  eveiytliing  which  becomes  law  by  the  act,  §  49. 

requirement  to  read  on  separate  days,  §  49. 

what  sufficient  cause  for  dispensing  witli,  not  a  judicial  question,  §  49. 

RES  JUDICATA  — 

decision  of  case  is,  though  not  made  in  compliance  with  constitution^ 
§451. 

RETROSPECTIVE  LAWS  — 

such  law  giving  illegitimates  a  right  to  inherit,  presumed  not  intended 
to  affect  pending  action  in  which  plaintttf  had  no  title  at  its  com- 
mencement, §  148. 
may  take  away  defenses  based  on  irregularities,  §  164. 
may  vaUdate  contracts,  §  164. 
when  obnoxious,  §  206. 
when  not  imjust,  §  206. 
may  have  eflfect  prejudicially  on  private  interests,  when  not  protected 

by  constitution,  §  206. 
strictly  cousti'ued,  §  406. 
statutes  which  change  the  iTde  of  evidence  relate  to  the  remedy,  and 

do  not  impair  the  obligation  of  contracts,  §  478. 
a  law  abolishing  distress  for  rent  has  been  sustained,  §  478. 

also  imprisonment  for  debt,  which  is  not  considered  as  part  of  the 
contract,  §  478. 
statutes  of  Limitation  may  be  changed  and  affect  existing  cases,  §  479. 
legislature  cannot  create  a  legal  hability  out  of  past  ti'ansaction,  §  581. 
statutes  win  not  be  consti'ued  to  injui'e  inchoate  rights,  if  it  can  be 
avoided,  §  481. 
nor  to  interfere  with  the  existing  course  of  business,  unless  the  in- 
tention is  clearly  expressed,  §  481. 
remedial  statutes  wliich  are  retarospective,  how  construed,  §  483. 
continuing  fact  commencing  before  passage  of  act,  and  continuing 

afterwards,  how  affected,  §  482. 
statutes  relating  to  procedure  prima  facie  apply  to  existing  cases,  §  483. 
pending  proceedings  good  as  far  as  they  have  gone  when  new  act 
takes  effect,  §  482. 
definition,  §  463. 

regarded  with  disfavor  as  generally  imjust,  §  463. 

ex  post  facto  laws  and  laws  impaii-Lng  obligation  of  contracts  prohib- 
ited, §  463. 
statute  should  not  be  so  construed  as  to  affect  existing  rights,  §  464 
or  impose  new  duties  or  obligations  in  respect  of  past  transactions, 
§464. 
general  provision  that  statute  of  limitations  shall  run  against  state,  not 
be  construed  retrospectively,  §  464 


INDEX.  681 

RETROSPECTIVE  LAWS  (continued) — 

statute  of  limitations  will  not  be  construed  to  apply  to  existing  cases, 

§464. 
statute  will  not  be  construed  to  take  away  a  right  to  an  office,  §  464. 

as  by  applying  to  incumbents  new  regulation  as  to  age,  >5  404. 
new  statute  for  review  of  proceedings  on  complaints  against  assess- 
ments, not  applied  to  pending  cases,  §  464 
for  review  by  pi-obate  coui't  of  its  own  decisions  given  only  pro- 
spective effect,  g  464. 
new  record  of  deeds  not  applicable  to  existing  deeds,  §  464. 
strictly  construed,  §  464. 

subsequent  act  allowing  attorney's  fee  to  be  added  to  penalty,  §  469. 
what  are  ex  post  facto  laws,  §§  465,  470. 
what  laws  impair  obligation  of  contracts,  §§  471-479. 
recording  laws  may  apply  to  existing  deeds,  §  474. 
contracts  may  be  validated,  §  474. 
periods  of  limitation  may  be  changed,  §  477. 

REVENUE  LAWS  — 
how  construed,  §  361. 
tax  laws  consti-ued  sti-ictly,  §  362. 
also  statutes  delegating  the  taxing  power,  §  365. 
and  statutes  exempting  from  taxation,  §  364. 

REVISION  — 

repeal  of,  does  not  revive  revised  acts,  §  168. 

nor  the  common  law,  §  168. 
what  is,  §  154 
implied  repeal,  §§  154-156. 

to  be  alone  consulted  when  the  meaning  is  plain,  §  156. 
when  there  is  a  conflict  original  acts  consulted,  §  156. 
title  of  original  act  may  be  considered  in  case  of  doubt,  §  156. 
does  not  repeal  exceptions  in  original  law,  §  156. 
dates  of  original  enactments  will  determine  priority  of  parts,  §  161. 

REVIVAL  — 

repealed  statute  revived  by  repeal  of  repealing  statute,  §§  162, 168. 

otherwise  where  constitution  requu-es  new  act  to  contain  revised 
law,  §  168. 
repealing  a  statute  revives  common  law,  §  168. 
where  repealing  statute  substitutes  other  provisions,  §  168. 
may  be  made  to  depend  on  contingent  event,  §  168. 
where  act  expressly  revived,  how  to  be  construed,  §  168. 
incomplete  proceedings,  made  void  by  repeal,  not  revived  by  revival  of 

statxite,  §  168. 
repeal  of  revision  does  not  revive  revised  acts,  §  168. 

REVIVAL  OF  ACTIONS  — 

law  for,  against  representatives  in  pari  materia  with  law  for  appoint- 
ment of  executors  and  adiuiuistratoi-s.  g  284. 
constiniction  of  remedial  statute  for,  on  death  of  plaintiff,  §§  416,  436. 


682  INDEX. 

RIGHTS  — 

law  at  the  time  of  their  accrual  governs,  §  11. 

statutory,  inchoate  when,  g  11. 

under  foreign  law,  §  13. 

in  action,  plaintiff  should  have  title  when  suit  brought,  §  148. 

statutory  right,  while  inchoate,  lost  by  repeal,  §  163. 

distinguished  from  remedy,  §  164. 

when  vested  under  statute  whUe  in  force,  not  destroyed  by  repeal,  §  164 

pubhc,  not  ti'eated  as  relinquished  by  inference,  §  386. 

when  statute  creates,  effect  on  existing,  §  202. 

effect  of  repeal  on  statutory,  while  inchoate,  §  163. 

statutes  against  common  right  strictly  construed,  §§  366,  367. 

liberal  construction  of  acts  for  persons  affected  prejudicially  by  favors 

granted  to  others,  §  441. 
inchoate,  are  subject  to  legislation,  §  481. 
new  remedy  may  be  provided  for  existing,  and  added  to  or  substituted 

for  those  wliich  exist,  §  482. 
vested,  not  to  be  legislated  away  by  curative  statutes,  §  483. 
not  meritorious  which  rest  upon  defects,  §  484. 

if  jurisdictional  facts  are  wanting,  the  proceeding  cannot  be  sustained 
nor  cm-ed,  §  484. 

the  proceeding  will  be  fatally  and  incurably  defective,  §  484 
statutes  conferring  new,  strictly  construed,  §  458. 

prescribing  mode  of  enforcement  mandatory,  §  458. 

regulating  existing,  with  negative  words,  mandatory,  §  459. 
common  law,  not  taken  away  unless  intention  clear,  §  400. 

ROAD  — 

f  rancliise  to  build  not  constnied  to  be  exclusive,  §  378. 
grant  to  plank-road  company  to  lay  its  road  on  established  highway  im- 
pUes  no  power  to  take  exclusive  possession,  §  378. 

RULE  OF  ACTION  — 

how  applied  judicially,  §  9. 
prescribed  by  the  legislature,  §  10. 

RULE  OF  CIVIL  CONDUCT—  ^ 

what  is,  §§  7,  8. 

RULE  OF  PROPERTY  — 

when  doubtful  statute  construed  by  inferior  courts  and  has  become  a, 
§  307. 
practical  constmction  binchng  when  it  has  become  a,  §  309. 
constructions  which  are,  strongly  adhered  to,  g§  314,  317.  318. 

SALARY  — 

not  changed  by  appropriation  being  made  of  a  less  sum,  §  150. 

SALE  — 

of  real  estate  on  execution,  statute  requuing  cei-tificate  of  to  be  filed, 

directory,  §  452. 
requirement  that  execution,  be  made  at  court-house,  mandatory,  §  455. 


INDEX.  683 

SAME  SESSION  — 

laws  passed  at  same  session  deemed  less  likely  to  conflict,  §§  151, 153, 
283. 
SAVING  CLAUSE  —  " 

what  is,  §§  232,  225. 

is  void  if  totiilly  repugnant  to  purview,  §§  221,  2281 

generally  restricts  repeal,  §  225. 

strictly  construed,  §  225. 

in  penal  acts  provisos  and  exemptions  in  favor  of  accused  liberally  con- 
strued, §  227. 

general  intent  of  repeal  cut  down  by  special  intent  in  saving  claiise, 
§225. 

its  effect,  §  225. 

a  general  saving  law  \\tI1  have  effect  unless  a  different  intent  is  mani- 
fested in  subsequent  repeals,  §  226. 

general  excluded  by  special,  §  325. 

general  provisions  will  operate,  §  325. 

express  saving,  exception  or  exemption  excludes  others,  §  328. 

effect  of  against  repeal,  §  167. 

general  statute  may  operate  as  such,  §  167. 

SEALED  BIDS  — 

statutes  regulating,  mandatory,  §  458. 

SEA  SHORE  — 

grants  of,  how  construed,  g  386. 

act  to  incoporate  city  bordering  on,  vests  no  part  of,  §  386. 
SESSIONS  OF  LEGISLATURE  — 

time  and  length  of,  prescribed  in  constitution,  mandatory,  §  26. 

must  be  held  at  proper  place,  §  26. 

extra  sessions,  §  26. 
SET-OFF  — 

remedial  act  allowing,  of  improvements,  §  437. 
SHALL  BE  LAWFUL  — 

when  mandatory,  ^§  460-462. 

SHIP-OWNERS  — 

consti-uction  of  act  mitigating  rules  of  common  law  in  favor  of,  §  442. 

''SINGLE  MAN"  — 

may  be  made  by  context  and  manifest  Latent  to  include  unmarried 
woman,  §  417. 

SINGLE  SUBJECT  OF  STATUTES  — 

constitutional  provisions,  §  76. 

held  mandatory,  ^f$  79-81. 
what  is  the  subject  or  object,  §  83. 
no  limit  to  its  magnitude,  §  84. 
tlie  required  imitj'.  §  84. 

no  objection  that  subject  only  partially  treated,  §  84. 
all  the  provisions  must  be  germane  to  subject,  §  85. 

and  not  broader  than  the  title,  §  85. 


684:  INDEX. 

SINGLE  SUBJECT  OF  STATUTES  (continued)  — 

a  subject  includes  incidents  and  subsidiaiy  details,  §  93. 

what  an  act  of  tQCorpoiation  may  include,  §  94. 

illustrations,  showing  what  detaUs  and  incidents  are  germane,  §§  94> 

95,  96. 
includes  abolition  of  tilings  inconsistent,  §  97, 

a  plurality  of  similar  subjects  may  be  gi-ouped  and  constitute  a  single 
subject,  §  98. 
but  if  individualized  in  treatment  there  is  no  unity,  §  98. 
a  curative  act  may  apply  to  many  msti-uments  or  proceedings,  §  99. 
one  act  may  relate  to  all  or  a  portion  of  the  courts  of  a  state,  §  100. 
under  title  to  amend  an  act.  only  provisions  can  be  included  which 
might  have  been  included  in  tlie  act  amended,  §  101. 
curative  provisions  would  make  the  act  double,  §  101. 
provisions  not  germane  to  or  outside  the  title,  void,  §§  102,  170. 
effect  of  including  more  than  one  subject  in  act  and  in  title,  §  103. 

"SINGLE  WOMAN"  — 

may  be  made  by  context  and  manifest  intent  to  include  married  woman, 
§418. 
SOVEREIGNTY  — 

every  nation  possesses  exclusive  within  its  own  territory,  §  13. 

what  it  extends  to,  §  13. 

all  residents  subject  to  it,  §  13. 

local  law  governs  acts  done,  contracts  made,  etc.,  §  13. 

how  change  of,  affects  the  laws,  §  19. 

is  in  the  people,  §  41. 

gi-ant  of  right  to  sue  state  sti-ictly  construed,  §  386. 

SPECIAL  LAWS  — 

prohibition  of  in  constitution,  §  116. 

object  of  proliibition,  g§  120,  127. 
definition,  §§  120,  127. 

local  laws  are  special  as  to  place,  §  127. 
legislature  has  power  to  pass  special  and  local  laws  in  the  absence  of 

constitutional  inliibition,  §  119. 
invalidity  of  unequal  special  laws,  §  119. 

proliiljition  of,  on  enumerated  subjects  is  an  implied  requirement  of  gen- 
eral laws,  §§  126,  127. 
individual  cases  of  enumerated  class  cannot  be  provided  for,  §§  126,  129. 
exudative  laws  cannot  be  passed,  §  130. 

dTARE  DECISIS  — 

statutory  consti-uctions  should  be  adhered  to,  §§  310,  312. 

when  a  point  has  been  once  settled  it  should  be  adhered  to,  §  313. 

to  give  stability  to  law,  §  313. 
precedents  have  effect  on  legal  science  as  experiments  in  philosophy, 

§313. 
decisions  have  effect  beyond  the  particular  case,  §  313. 
they  become  authority,  §  313. 

the  liighest  evidence  of  what  the  law  is,  §  313. 


INDEX.  685 

STARE  DECISIS  (continued)  — 

distinction  between  j)recedents  which  are  rules  of  property  and  those 
which  are  not,  ^§  314,  315,  317,  318. 

will  be  regarded  as  a  rule  of  property  if  its  nature  is  such  or  will  oper- 
ate to  become  such,  ^  318. 

no  absolute  rule  wlien  imperative,  §  316. 

when  departed  from  there  is  a  thoughtful  comparison  of  consequences, 
^5  316. 

two  grounds  for  departing  from  a  single  decision,  §  317. 

applicable  to  constitutions  and  statutes,  §  317. 

applies  only  to  decisions  on  points  involved  in  causes,  i;  317. 

applies  not  alwaj's  to  the  reasoning,  but  only  the  conclusion  and  what- 
ever that  necessarily  involves,  g  320. 

there  is  no  effect  on  questions  not  decided,  though  they  might  have 
arisen,  §  318. 

a  judicial  construction  of  statutes  becomes  a  part  of  them,  §  319, 

and  rights  wliich  have  attached  under  a  construction,  especially 
under  conti-acts,  cannot  be  divested  by  a  change,  §  319. 

contract  rights  are  protected  by  the  federal  constitution  from  such  im- 
pairment, §  319. 

a  decision  of  the  supreme  court  is  law  of  the  case  in  its  subsequent  trial 
and  proceedings,  §  321. 

STATE  — 

bovmd  like  a  natural  person  by  its  contracts,  §  472. 
its  conti'acts  protected  from  impairment  like  contracts  of  private  per- 
sons, §  474 

STATUTE  OF  FRAUDS  — 

applicable  to  prior  contracts,  may  impair  their  obligation,  §  471. 

STATUTE  OF  LIMITATIONS  (see  LimitationsX 

STATUTES  (see  Repeals;  Titles  of  Statutes  and  Single  Subject  op 
Statutes) — 

have  no  extraterritorial  effect,  §§  12,  14 

effect  of  foreign  statutes  and  laws,  §  12. 

extraten-itorial  effect  in  case  of  colonization,  §  15, 

continuance  after  change  of  sovereignty,  §  19. 

of  states  in  rebellion,  §  20. 

domain  of  federal  and  state  statutes,  §g  21,  22. 

statutes  of  one  state  foreign  to  other  states,  §  22. 

state  statutes  not  foreign  to  general  government,  §  22k 

common-law  record  of,  g  27. 

no  plea  denying  admitted,  gg  27,  53. 

vaUdity  of,  how  tiied,  g§  27,  43,  44,  52,  182. 

how  question  of  existence  raised  and  decided,  §§  27,  52,  53,  54 

legislative  record,  ^  28. 

parol  evidence  not  sufficient  to  impeach,  §  43. 

joui-nals  may  be  consulted  for  parliamentary  history  of,  §  43. 

absence  of  provision  for  verifying  all  proceedings  necessary  to  due  en- 
actment of,  §§  40,  41. 


QS<0  INDEX. 

STATUTES  (continued)  — 

will  not  be  declared  void  on  facts  admitted  by  parties  litigant,  §  45. 

presumed  valid,  §  46. 

operation  of,  may  be  made  to  depend  on  contingency,  §§  72-74 

or  foreign  legislation,  §  74. 
constitutional  requii-ements  as  to  single  subject  and  title,  §§  76-103. 
duration  of,  §  136. 

take  efifect  from  date  of  passage  unless  other  date  specified,  g§  104,  106. 
date  of  passage  is  date  of  last  act  in  process  of  enactment,  g  104. 
purpose  of  specifying  future  commencement,  §  104. 
formerly  acts  of  parliament  took  effect  from  beginning  of  session,  §  105. 
lias  been  changed  by  statute,  §  105. 
same  rule  recognized  in  North  Carolina,  §  106. 
legislature  may  fix  future  day  for  act  to  take  effect,  §  107. 
speak  from  the  day  they  take  effect,  §  107. 

and  from  the  first  moment  of  that  day  if  it  be  a  future  day,  §  111. 
if  they  take  immediate  effect,  they  commence  to  operate  at  the  precise 

time  of  passage,  §  110. 
taking  effect  on  pubUcation,  §  109. 

effect  of  genei-al  statute  fixing  futiu-e  date  for  acts  to  commence,  §  107^ 
supplemental  act  taking  immediate  effect  may  give  such  effect  also  to 

the  original  act,  §  107. 
constitutional  provisions  regulating  the  time  of  acts  taking  effect,  §§  108, 
109. 
are  mandatory,  §  108. 
emergency  clause,  §  108. 

in  the  absence  of  emergency  clause  when  required,  time  of  tak- 
ing effect  not  shortened,  §  108. 
repealing  power,  §  136. 
repeals  express  and  implied,  §§  136-178. 
negative  statute  is  one  expressed  in  negative  terms,  §  139. 
afiii'mative  statute  is  one  expressed  in  affirmative  terms,  §  139. 
what  penal  laws  include,  §  143. 
where  statute  changes  iJunishment  of  common-law  offense  it  is  still  a 

common-law  offense,  §  142. 
specific  regulations  in  general  law  adopted  by  general  reference  in  local 

act,  how  affected  by  subsequent  changes,  §  390. 
courts  have  no  concern  with  policy  or  expediency  of  statutes,  §  237. 
whether  expressed  in  general  or  limited  terms,  legislature  to  be  taken  to 

mean  what  it  has  plainly  said,  §  237. 
a  different  mtent  is  not  thus  to  be  imputed  to  legislation  to  serve  any 

supposed  i)olicy  or  to  maintain  its  validity,  §  238. 
to  be  read  so  as  to  harmonize  and  give  effect  to  all  their  parts,  §§  239-246. 
every  part  to  have  effect,  §  240. 

literal  import  not  to  govern  against  evident  intention,  §§  241-246. 
intention  declared  in,  controlling,  §  246. 
interpretation  of  words  and  phrases,  §§  247-255. 
recitals  in,  effect  of,  §  194. 

value  of,  in  construction,  §  247. 


INDEX.  C87 

STATUTES  (continued)  — 

prohibitory  statutes  uot  construed  on  principles  of  leniency,  §  254. 

prohibited  things  not  void  for  theii-  tendency,  §  254. 
user  of  words  in,  §  255. 

re-enacted  after  receiving  construction,  §  255. 
effect  of  re-enacting  with  change,  §  256. 
every  cliange  does  not  indicate  change  of  intent,  §  256. 
adoption  of,  by  general  reference,  §§  257,  390. 
confined  to  object  of  adoption,  §  257. 
effect  of  rejieal  after  adoi)tion,  §  257. 
effect  of  incorporating  existing  statute  in  a  new  one,  §  257. 
not  vitiated  by  bad  grammar,  §  259. 
may  be  fatally  vague  and  ambiguous,  §  261. 
in  pari  materia,  gg  283-288. 
to  be  construed  with  reference  to  whole  system  of  which  it  is  a  part, 

§  284. 
doubtful  provisions  not  to  be  construed  in  conflict  with  general  princi- 
ples, §  287. 
courts  will  judicially  notice  history  of  act  in  process  of  enactment  for 

certain  purposes,  §  300. 
to  be  read  iu  view  of  surrounding  facts,  §  300. 
when  object  may  be  learned  from  another  document,  §  300. 
contemporaneous  construction  of,  §  307. 
effect  of  general  usage  iu  construction  of,  §  308. 
practice  inconsistent  with,  cannot  repeal,  §  308. 
Bhould  be  so  consti'ued,  if  possible,  as  to  make  it  valid,  §  324 
duly  authenticated,  presumed  duly  enacted,  §  330. 
except  where  by  organic  law  it  is  provided  otherwise,  §  330. 
expediency  and  moral  justice  of,  not  considered  by  com'ts  to  affect 

validity,  §  330. 
facts  assumed  by  act  cannot  be  disproved  to  invalidate,  §  331. 
act  creating  county  cannot  be  invalidated  by  disproving  required  popula- 
tion, §  331. 
presumed  to  be  intended  to  have  effect  and  capable  of  it,  §  331.         * 
presumed  valid,  §  331. 
every  intendment  made  in  favor  of,  §  332. 
epecific  prevails  over  general,  §  325. 
in  derogation  of  existing  law  sti-ictly  constmed,  §  333. 
public,  noticed  by  courts,  §  335. 
private,  not  noticed,  §  335. 

construed  with  reference  to  object  or  pm-pose,  §  346. 
strict  constmction  of,  §  346. 
construction  rests  upon  many  rules,  §  347. 
penal,  strictly  construed,  g  349. 
cannot  be  extended  l)y  implication,  §  350. 
strict  construction  ai)plies  whether  statute  refers  to  description  of  the 

offense,  the  penalty  or  procedure,  §  352. 
revenue  laws,  how  construed,  g  361. 
for  taxation,  §§  362,  36a 


688  INDEX. 

STATUTES  (continued)  — 

exemption  from  taxation,  or  other  burdens,  §  364. 
against  common  right  sti'ictly  construed,  §  366. 
of  hmitations,  §  368. 

fixing  limitations  of  right  to  move  for  new  trial  or  to  take  appeal,  §  369. 
interfering  with  legitimate  industries,  how  construed,  §  370. 
creating  or  increasing  liability,  g  370. 

giving  action  to  widow  and  next  of  kin  for  negUgently  causing  death, 
§§  371,  398. 
costs,  §  371. 
for  discharge  of  insolvent  debtors,  §  372. 
for  exemption  of  property  from  execution,  §  372. 
depriving  passengers  of  compensation  for  injuries  who  ride  on  platform, 

§  372. 
allowing  recoveiy  of  damages  from  intoxication  against  sellers  and 

renters,  §§  373-377. 
modified  expressly  or  by  imphcation  by  later  legislation,  §  287. 
doubtful  provision  not  construed  to  conflict  with  general  principles, 
§  287. 
or  f  undaftiental  rights.  §  290. 
object  of,  has  potent  influence  in  construction  of,  §  292. 
state,  in  federal  courts,  §  293. 

every  part  of,  should  have  a  reasonable  effect,  §  398. 
authorizing  persons  to  sue  in  forma  paiq^eris,  §  398. 
construction  of  insolvent  act  as  to  voluntary  conveyances,  §  419. 

act  providing  compensation  of  pubhc  ofiicers,  §  419. 
when  intended  for  the  protection  of  purchasers  and  creditors,  not  aj)- 

plicable  to  others,  §  429. 
remedial,  §§  434,  444. 

when  declared  to  be  remedial,  how  constmed,  §  445. 
directory,  §§  446-453. 
mandatory,  ^§  454-462. 
statutory  dii-ection  to  secretary  of  state  to  publish,  directory,  §  452. 

to  make  plan  of  drainage  before  directing  work  to  be  done,  direct- 
ory, §  452. 
retrospective,  §§  463-482. 
curative,  §§  483,  484 

STATUTORY  DEFINITIONS  — 

apply  where  a  statute  does  not  otherwise  interpret  itself,  §  231. 

their  general  application,  §  231. 

special  statutory  definitions  exclude  aU  others,  §  231. 

not  appUcable  to  pleadings  on  the  statute  to  which  they  apply,  §  281. 

STATUTORY  LAW  — 
definition  of,  §§  6,  7,  8. 
what  included  in,  §§  7,  8,  11. 

cannot  be  extended  to  govern  existing  cases,  §  11. 
has  no  extraterritorial  effect,  §  12. 
essential  that  there  be  a  legal  legislature,  §  26. 


INDEX. 


6.S9 


STATUTORY  LIEN  — 

lias  only  coiiinion-law  incidents,  §  290. 

STATUTORY  POLICY  — 

strict  construction,  to  prevent  overturning  established  and  well  defined. 

§  407. 
general  language  will  te  constixied  in  liai  iiiouy  with,  §  407. 

STATUTORY  PROCEEDINGS  — 

must  be  conformable  to  statute,  J5  4~)C. 

every  act  which  is  jurisdictional,  or  of  essence  of  proceeding,  or  for 

beneiit  of  party  affected,  mandatory,  §  45G. 
certificate  of  justice  of  death  of  infant's  father,  as  a  prerequisite  t<. 

mother's  consent  to  apprenticeship,  §  4.56. 
every  material  retiuu-fnient  of  statute  to  be  followed  in  exercise  of 

power  of  eminent  domain,  §  456, 
provision  that  wt)rk  under  municipal  charter  be  let  to  lowest  bidder, 

mandatory,  g  457. 

STATUTORY  RIGHTS  — 

depend  on  statiites  creating  them,  §  398. 

to  recover  for  death  caused  by  negligence,  g^  371,  398. 

statutes  for  accommodation  of  particular  citizens  or  corporations,  §  398. 

to  sue  ill  forma  jMinjjer is,  §  398. 

to  detain  trespassing  animals,  g  398. 

for  alloAvance  of  gratuitous  credits  against  debt  to  state,  §  398. 

mechanic's  lien  law,  j^  398. 

to  obtain  svimmary  judgment,  §  398. 

as  to  mode  of  obtaining  compensation  for  property  taken  for  public  use, 

§398. 
statutes  regulating,  mandatory,  §§  458,  459. 

STAY  LAWS  — 

consti-uction  of  as  to  impairing  obhgation  of  contracts,  §  478. 

STORY,  MR  JUSTICE  — 

his  views  of  the  separation  of  fundamental  powers,  §  3. 

STRICT  CONSTRUCTION  — 

a  statute  m  derogation  of  an  existmg  statute  will  be  strictly  construed, 

§137. 
best  to  follow  reason  and  rule  of  common  law,  g  290. 
statute  in  affirmance  of  the  common  law  construed  by  it,  g  291. 
extraneous  facts  in  aid  of,  §  292. 
object  of  statute  has  potent  influence  in,  §  292. 
contemporaneous,  §  292. 
object  of  statute  considered,  §  292. 
extrinsic  aids  in,  §  292. 
comjmred  witli  liberal,  g§  .346-348,  359,  360. 
not  precise  convei-se  of  hl)eral  consti'uction,  §§  347,  348. 
appUed  to  peuid  laws,  j^  361. 
does  not  embrace  a  case  not  within  letter,  §§  348,  350,  354 

so  if  not  within  the  iutontiou,  §  .^O. 
not  so  applied  as  to  defeat  intention,  §§  34&-350. 

44 


690  INDEX. 

STRICT  CONSTRUCTION  (continued)  — 

not  opposed  to  application  of  common  sense,  §  350. 
applies  to  description  of  offense,  penalty  and  procedure,  §  353. 
statute  not  to  be  extended  beyond  grammatical  sense  on  a  plea  of  fail- 
ure of  justice,  §  353. 
penalty  not  inflicted  if  meaning  in  doubt,  §  353. 
if  notice  necessary  to  impose  a  duty  it  must  be  actual  notice,  g  354 
doubts  on  reading  statute  to  be  resolved  in  favor  of  accused,  §§  353,  357. 
ambiguities  not  to  be  imagined  in  order  to  apply  a  lenient  construction, 

^357. 
of  revenue  statutes,  §  361. 
of  statutes  which  impose  taxes,  §§  362,  363. 
or  exempt  from  taxation,  g  364. 
or  delegate  the  taxing  jpower,  §  365. 
of  statutes  against  common  right,  §  366. 

limiting  right  to  move  for  new  ti-ial  or  take  appeal,  §  369. 
interfering  with  legitimate  industries,  §  370. 
of  public  grants,  g§  378,  379. 
of  delegation  of  power  to  corporations,  §§-379-386. 

eminent  domain,  §§  387-389. 
of  statutes  granting  power,  §§  390,  391. 
providing  new  remedy,  §§  393,  393. 
summary  proceedings,  §  393. 
new  methods  of  proof,  §  393. 
methods  of  appeal,  §  394. 

exceptional  methods  of  obtaining  jurisdiction  of  parties,  §  394. 
of  new  procedure  for  new  offense,  §  396: 
of  staUitory  rights,  §§  397,  398. 

statutes  in  derogation  of  common  law,  §  400. 
of  statutes  relative  to  married  women,  §  400. 
when  interpretation  clause  strictly  construed,  §  402. 
of  retrospective  laws,  §§  406,  464. 
of  statutes  to  prevent  interference  with  well  defined  and  established 

statutory  policy,  §  407. 
appUed  to  statutes  granting  new  right,  privilege  or  immunity,  §  458. 

SUBJECT-MATTER  — 

of  statute,  conti-oUing  effect  of  in  construction,  §  218. 

general  words  may  be  resti-ained  to  it,  §  218. 

words  of  narrower  import  expanded  to  it,  §  218. 

general  provision  in  appropriation  act  presumed  temporary,  §  218. 

act  giving  pilot's  lien  construed  not  to  apply  to  government  vessels, 

§218. 
general  saving  clause  limited  to  acts  repealed  by  same  act,  §  218. 
exemption  in  revenue  law  limited  to  taxes  provided  for  in  same  act, 

§218. 

SUITORS  — 

acts  remedial  which  are  intended  to  promote  convenience  of,  §  437. 

SUPPLEMENTAL  ACTS  (see  Amendatory  Acts),  §  135. 


INDEX.  C&l 

SUMMARY  PROCEEDINGS  — 

statutes  for,  sti-ictly  coustinied,  g§  207,  393,  399. 

TAXATION  — 

statutes  authorizing,  or  delegating  power  of,  constmed  strictly,  §§  361- 
363,  365. 
also  exenii)tions  from,  §  364. 
never  implied  thit  tlie  government  has  suiTendered  the  power  of,  §  3T8. 

TAX-PAYER  — 

provisions  for  protection  of,  mandatory,  §  454. 

publication  of  notice  as  to  time  of  redemption,  §  457. 

TECHNICAL  WORDS  — 

when  used  technically  to  be  constinied  accoi'ding  to  technical  meaning, 
gg  247,  253,  254. 
in  the  sense  generally  accepted  among  tliose  engaged  in  the  trade, 
etc.,  to  which  tliey  apply,  g  254 

TENSE  — 

of  statutes  not  always  followed,  g  259. 

TERRITORIAL  DIVISIONS  — 

established  by  public  statutes  judicially  noticed,  §  295. 

TERRITORIAL  LAWS  — 

power  of  congress  to  legislate  for  territories,  §g  23,  24,  195. 

TERRITORIES  — 

power  of  congress  to  legislate  for,  §g  23,  24. 

nature  of  government  in,  §§  24,  25. 
TESTAMENTARY  BOND  — 

what  construed  to  include,  §  423. 

TEST  OATH  — 

statute  requiring  of  suitors,  strictly  construed,  §  367. 

statute  requiring  in  respect  to  past  acts,  ex  post  facto,  §  467. 
when  apjjlicable  to  present  acts,  §  468. 
TIME  WHEN  STATUTES  TAKE  EFFECT  (gg  104-111,  160)  — 

statutory  provisions  requiring  official  acts,  directory  as  to,  §g  448-450. 

TITLE  — 

acquired  by  laws  of  one  coimtry  good  everywhere,  §  13. 

TITLE  TO  LAND  — 

coui-ts  take  judicial  notice  of  the  source  whence  derived,  ,i;  298. 

TITLES  OF  STATUTES  — 

constitutional  reiiuirement  to  express  subject  of  act,  §  76. 

held  mandatory,  gj;  79-81. 
indispensable  part  of  every  act,  g>5  86.  211. 
how  subject  required  to  be  stated  in,  g  86. 
niustbe  as  comprehensive  as  the  subject,  §  87. 

and  broad  enough  to  cover  aU  the  provisions,  ^^  87,  211. 
thr  purpose  fur  which  title  must  express  tlie  subject,  g  88. 


692  INDEX. 

TITLES  OF  STATUTES  (continued)  — 

the  degree  of  particularity  in  expressing  the  subject  left  to  discretion  of 

tlie  legislature,  §  88. 
it  may  be  too  general ;  if  misleading  will  vitiate  act,  §  80. 
it  need  not  index  the  details  of  act,  §g  88,  211. 
it  may  index  details,  and  will  be  good  expression  of  the  general  subject 

m  which  they  converge,  §  95. 
it  need  not  give  synopsis  of  means  to  accomplish  the  statutory  purpose, 

§88. 
"  etc."  may  increase  scope  of  the  title,  §  89. 
should  accompany  bill  in  its  passage,  g  91. 
a  subject  stated  generally  in  the  title  includes  incidents  and  subsidiary 

details,  §§  93-95. 
amendatory  and  supplemental  acts,  §  101. 

sufficient  if  it  identihes  the  original  act  and  expresses  the  purpose 

to  amend  or  supplement  it,  §  101. 
may  contain  whatever  might  have  been  inserted  in  amended  or  sup- 
plemented act,  §^  101,  132. 
if  act  and  title  contain  more  than  one  svibject,  whole  act  void,  §  103, 
no  part  of  statute,  §  210. 

of  gi-eat  importance  in  modern  legislation,  §  210. 
could  not,  at  common  law,  control  plain  words  in  the  statute,  §  210. 
referred  to  in  case  of  doubt  to  clear  away  ambiguities,  §^  210,  213. 
acts  identified  by,  §  210. 
when  no  constitutional  barrier,  plain  words  may  give  act  effect  beyond, 

g  210. 
effect  of  constitutional  restriction  to  one  subject  in,  §  211. 
act  to  be  consti-ued  in  view  of,  §  211. 
is  a  limitation  to  scope  of  act,  §  211. 

TOLL  — 

franchise  to  take  not  impUed  in  grant,  §  378. 

TOPOGRAPHY  — 

courts  take  judicial  notice  of,  of  state,  §  298. 

TOWNS  — 

subject  to  legislative  conti'ol,  §  473. 

may  be  changed  or  abolished  at  the  will  of  the  legislature,  §  473. 

TRADE  ~ 

includes  a  cod  fishery,  g  356. 

TRANSITORY  RIGHTS— 

may  be  enforced  anywhere,  g§  13,  14. 

title  acquired  vmder  laws  of  one  country  universally  recognized,  §  13. 
contracts  the  same  if  not  contrary  to  policy  of  the  law  of  forum,  §  13. . 

TREATIES  — 

rights  which  have  vested  imder  cannot  be  desti-oyed  by  the  legislature 

nor  the  executive  branch  of  the  government,  §  480. 
are  part  of  the  law,  §g  197,  394. 
judicially  noticed,  §  294. 


INDEX.  093 

UNIFORM  OPERATION  OF   LAWS  OF  GENERAL  NATURE  (§§  IIG, 
121-123)  — 
there  may  be  differences  in  details,  §  121. 
provLsiou  does  uot  prevent  speciul  legislation,  §  122. 
requirement  intended  to  prevent  privileges  or  immunities  to  one  class 
and  not  otliers,  §  121. 
to  prevent  unjust  discrimiDations,  §  122. 
of  this  natm-e  are  laws  as  to  sufficient  fences,  §  122. 

those  reqiiiriug  all  fields  to  be  inclosed  therewith,  §  122. 
or  prohibiting  sheep  from  running  at  large,  g  122. 
relating  to  libel,  §  122. 
or  taxes,  g  122. 
criminal  laws  must  have  a  uniform  operation,  §  123. 
also  laws  relating  to  common  schools,  §  123, 
divorce,  descent  and  distribution  of  property  of  decedents,  §  123. 
the  general  form  of  a  statute  not  the  criterion,  §  123. 
whether  a  law  be  of  a  general  nature  depends  upon  its  subject-matter, 

S123. 
judicious  classification  admissible,  §  123. 

what  is,  §§  127-129.  ^ 

a  law  in  general  terms  and  restricted  to  no  loca^t}^  operating  equally, 
must  apply  to  a  group  of  subjects  needing  peculiar  legislation,  §  127, 
distinctions  which  do  not  call  for  pecuhar  legislation  cannot  be  basis  of 

classification,  §  128. 
limitation  to  even  such  classification,  §  129. 
a  general  act  cannot  be  restiicted  in  ten-itoiy,  §  129. 
what  is  uxdform  operation,  §  124. 
operation  is  uniform  if  law  operates  uniformly  imder  like  conditions 

and  circumstances,  §  124. 
fees  may  be  aUowed  according  to  population,  §  124. 
how  uniformity  secured  in  Tennessee,  §  124. 
the  number  of  persons  affected  does  not  control,  §  125. 
legislation  as  to  certain  Uabdities  may  be  confined  to  railroad  compa- 
nies, §  125. 
exceptional  jm-isdiction  may  be  given  to  justices  in  such  cases,  §  125. 
towns  and  cities  may  be  classified  according  to  popiUation  for  appropri- 
ate legislation,  §  125. 
railroads  may  constitute  a  class  for  legislation  adapted  to  them  as  such, 

§126. 
a  law  embracing  whole  subject  must  also  have  uniform  operation,  §  127. 
what  is  a  general  subject,  §  127. 
such  laws  cannot  be  made  special  by  amendment,  §  130. 

UNREASONABLENESS  — 

argument  agamst,  forcible,  §  152. 

out  of  place  against  plainly  expressed  intention,  §  288. 

UNWRITTEN  LAW  — 

what  it  includes,  g§  15,  16,  184. 

of  real  property,  fedei'al  com'ts  follow,  as  interpreted  in  state,  §  187. 


694  INDEX. 

USAGE  — 

will  not  repeal  a  statute,  §  137. 

long  practice  may  clear  away  ambiguities,  §  137. 

VENIRE  — 

requirement  that  certain  words  be  inserted,  mandatory,  §  455. 

VESTED  RIGHT  — 

retrospective  laws  impau'ing,  §  206. 

what  is,  §  164 

when  party  may  have  in  penalty,  §  166. 

cannot  be  destroyed  or  impaked,  §  480. 

secm-ed  by  the  bUl  of  rights,  §  480. 

is  property  as  tangible  things  are,  §  480. 

there  is,  in  an  accrued  cause  of  action  or  defense,  §  480. 

a  defense  under  statute  of  hmitations  is,  §  480. 
a  title  may  be  so  derived,  §§  479,  480. 

if  a  conti'act  when  made  is  a  nullity  it  cannot  be  made  good  by  an  act 
of  the  legislature,  §  480. 

a  right  of  redemption  once  vestsd  is  a  property  right,  §  480. 
it  cannot  be  annulled  by  a  legislative  act,  g  480. 

a  husband's  right  in  the  property  of  his  wife  cannot  bs  divested  by  sub- 
sequent legislation,  §  480. 

VOLUNTARY  CONVEYANCES— 

consti'uction  of  remedial  statute  relating  to,  §  419. 
VOTER  — 

statutoiy  conditions  to  right  to  vote  must  be  complied  with,  §  459. 

WAR  — 

in  case  of  civil,  exception  to  statute  of  limitations  admitted,  §  424 
WARRANT  OF  ATTORNEY  — 

construction  of  statutes  relative  to,  §  429. 
WATER-COURSE  — 

grant  of,  does  h^t  include  public  ferry,  §  379. 
WIDOW  — 

statutes  giving  action  to,  and  next  of  kin  for  causing  death,  §  371. 
damages  from  intoxication,  §§  373-377. 
WILBERFORCE  — 

his  definition  of  statute  law,  §  7. 
WILFUL  — 

meaning  in  statutes,  §  253. 
WILL  — 

act  remedial  providing  for  execution  of  powers  of,  by  successor  of  exec- 
utors, g  436. 

construction  of  act  making  void  bequest  to  witness  to,  §  437. 

statute  pirovidijQg  requisites  of,  wiU  not  be  apphed  to  those  which  have 
been  executed,  §  464 


INDEX.  C95 

WILL  (continued)  — 

consti-uction  of,  cannot  be  affected  by  act  passed  after  death  of  testator, 

§480. 

WITNESSES  — 

exceptions  to  competency  of,  restrictive,  §  224. 

construction  of  ntatute  prohibiting  a  party  as  v  itness  as  to  transaction 

after  opposite  party  dead,  §  -129. 
act  remedial  tJiat  bequest  to,  in  will,  void,  g  43G. 

WORDS  AND  PHRASES  — 

to  be  construed,  or  altered  or  supplied,  to  advance  intention  of  act, 

§§  218,  246. 
may  be  contracted  or  expanded  for  that  purpose,  §§  219,  238. 
general,  may  be  cut  do\vn  to  avoid  conflict  witli  settled  policy,  §  218. 
limited  expression  may  be  expanded  to  effect  intent,  §  245. 
when  intention  ascertained  it  controls,  §  218. 
particular  words  may  indicate  a  hmited  intent,  §§  218,  219. 
general  words  in  one  part  may  be  limited  by  particular  words  in  another 

part,  §  219. 
meaning  of,  in  a  recent  statute  will  have  weight,  §  229. 
in  common  use,  to  be  taken  in  their  common  signification,  §  229. 
contemporaneous  construction  of  by  legislatiu-e  high  evidence  of  its  in- 
tention, §  229. 
where  they  conflict  with  each  other,  their  import  may  be  varied  to  avoid 

the  conti-adiction,  §  238. 
of  absolute  repeal,  may  be  qualified  by  context,  g  242. 
where  they  do  not  du-ectly  apply  to  the  particular  case,  the  object  of  act 

will  determine  their  sense,  §  242. 
orphan  maj'  be  .sliown  by  context  to  mean  minor,  g  242. 
natural  sense  of,  their  literal  import,  §  245. 
may  be  departed  from  to  carry  out  intention,  ^g  245,  246,  250. 
general,  or  clause,  may  be  restricted  by  evident  intention,  §  246. 
do  not  always  extend  to  eveiy  case  within  them,  g  246. 
inquiiy  is  in  what  sense  they  were  intended  to  be  used,  §  246. 
may  be  transposed,  §  246. 
when  interpretation  clause  intended  to  give  particular  words  another 

than  th  'ir  ruiturai  meaning,  strictly  consti'ued,  g  402. 
the  sense  of,  modified  by  context  and  associated  words,  g  262. 
effect  of  quaUfying,  g§  267,  269,  279-281. 
when  general,  follow  particular  words,  g  268. 
"  laws  sometimes  construed  by  context  may  mean  only  written  laws,'" 

§429. 
common  or  popular,  understood  in  a  popular  sense,  §§  247,  248,  254,  255, 
258. 
extended  to  all  the  objects  they  denote,  g  247. 
common  law,  in  common-law  sense,  §g  247,  253. 
technical,  in  a  technical  sense,  gg  247,  346. 

unless  context  shows  a  different  intent,  §  247. 
of  t^vo  significations  of,  the  popular  should  have  preference,  g§  248,  250. 


696  INDEX. 

WORDS  AND  PHRASES  (continued)  — 

general  should  receive  general  construction,  g  249. 

a  statute  directing  that  they  be  understood  according  to  common  usage 
does  not  preclude  other  common-law  rules,  §  251. 
other  rules  of  equal  dignity  and  importance  to  give  effect  to  legis- 
lative intent,  §  251. 

"  immediate  danger,"  how  quaUiied  by  general  intent  of  act,  g  251. 

in  statute  intended  for  people  should  be  understood  in  popular  sense, 
§251. 

"or"  and  "and"'  construed  as  interchangeable,  §  252. 

having  special  or  definite  sense  in  common  law,  understood  accordingly, 
§253. 

"  heir  "  means  one  capable  of  inheriting,  §  253. 

teclmical  words  used  relative  to  teclmical  subject,  §  264 
when  not  so  used,  §  254 

common,  having  a  technical  meaning,  presumjitiveiy  used  in  poju^ar 
sense,  unless  relating  to  technical  subject,  §g  254  255. 

in  penal  statute,  must  be  clear  evidence  of  intention  to  depart  from  pop- 
ular sense,  §  254 

statutory  user  of,  §  255. 

when  used  in  statutes  and  construed,  and  afterwards  re-enacted,  §  255. 
where  re-enactment  is  with  change  of  phraseology,  §§  255,  256. 

meaningless  words  may  be  disregdWed,  §  260. 

omitted  words  may  be  supplied,  §  260. 

wi'ong  words  may  be  corrected,  §  2j60. 

when  descriptive,  and  essential,  must  be  clear  and  accurate,  §  261. 

words  not  to  receive  narrowest  interpretation,  even  in  penal  statute, 
§357. 

"  wife  "  may  be  construed  "  widow  "  in  penal  statute  in  order, to  effectu- 
ate its  intention,  §  357. 

"navigating"  may  be  predicated  of  ,a  vessel  at  anchor,  §  357. 

"  deserting,"  not  predicable  of  leaving  for  cause,  §  355. 

"  tickets  "  do  not  include  due-bill  for  a  debt,  §  358. 

teclinicai  words  to  receive  a  teclmical  construction,  §  346. 

popular,  to  be  construed  according  to  common  acceptation,  §  346. 

"  trade  "  includes  a  cod  fishery,  §  356. 

to  "'  persuade  "  in  a  penal  statute  equal  to  "  aid,"  §  356. 

meaning  of  "  i^rize  "  and  "  capture  "  affected  by  purpose  of  act,  §  356. 

"  mortgagee  "  in  penal  statute  does  not  include  '•  assignee,"  §  358. 

"  officer  "  in  penal  laws  against  excessive  fees  does  not  include  one  who 
has  gone  out  of  office,  §  358. 

may  be  restrained  to  bring  operation  of  statute  within  its  intention, 
§429. 

limited  to  object  and  subject-matter  of  the  statute,  g  429. 

WRITTEN  LAW  — 

what  included,  §g  184  189. 


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